43( 

F'i 



Class_.:DIl4J_L 
Book '. I F 



t 



THE 

DUCHY OF SLESWIC, 

AS REGARDS ITS 

PUBLIC LAW 

AND ITS 

LAW OF SUCCESSION. 



I 



THE 

DUCHY OF SLESWIC, 

AS REGARDS ITS 

PUBLIC LAW 

AND ITS 

LAW OF SUCCESSION. 



LONDON : 

JOHN OLLIVIER, 5.9, TALL MALL. 



THE DUCHY OF SLESWIC. 



The inquiry into the constitution of the duchy of 
Sleswic, and more especially into the manner in which 
it is connected with the duchy of Holstein on the one 
hand, and with the kingdom of Denmark on the 
other, has of late years attracted pubdc attention. 

To the publications on this subject has been added a 
writing, which on account of the peculiar circum- 
stances under which it was composed, has excited 
general interest in a high degree. 

Some time ago a committee was appointed hy royal 
command, to inquire into the affairs of the duchies 
of Sleswic, Holstein, and Lauenburgh, relating to the 
succession. The conclusions to which this inquiry led 
with regard to the duchy of Sleswic, w^ere put 
together in a writing, which, tlirough separate editions, 
as well as through insertion in the public papers, 
has found a very extensive circulation at home and 
abroad. 

By publishing this "report of tlie committee," the 
question of the Sleswic succession has, officially, been 
introduced as a matter of free investigation, and the 
intention win'ch prevailed in editing the said writing, 
must have been that of gaining the assent of the 

B 



2 



public to what is stated as the result of the inquiry 
viz., that the duchy of Sleswic is, by virtue of the com- 
mon siiccesssion according to the Royal Law, inseparably 
united ivith the kingdom of Denmark, But we are, 
surely not mistaken in supposing, that assent is only 
to be given to that, which approved itself to be both truth 
and right ? We consider ourselves, therefore, fully 
justified in endeavouring, on our part, to answer the 
question, What is in the Sleswic cause truth and right ? 

Generally speaking, the above-mentioned writing 
has in tone and style, preserved the even tenor of a 
learned research. There is, however, some blame 
attached to it. It does not (as might have been 
expected of the report of such a committee, appointed 
by royal command) simply put the facts together, 
which seem to speak for the one view or the other, 
and decide at last in favour of that which appears to 
be best founded ; but it is from the beginning con- 
vinced of the soundness of one opinion, and tries to 
support this in every possible manner. What has 
been given to us is less an impartial report than an 
exposition, which has already taken a part, and is 
endeavouring to set forth and to explain everything in 
favour of it. The more necessary it becomes, in the 
stage at which the question has arrived, to submit the 
results of the report, and the proofs on which they are 
founded, to an unbiassed and thorough investigation. 

We ought, likewise, not to omit remarking that the 
report of the committee, whose authors have had an 
opportunity of making full use of all the state archives, 
neither communicates any new and decisive facts, nor 
furnishes any fresh proofs, and is, therefore, in reality, 
nothing but a remodelled construction of the already 
known materials. 



3 



In inquiring into the affairs of the duchy of 
Sleswic, relating to the succession, it is chiefly the 
events of the year 1721, which are to be taken into 
consideration. But in order to gain a proper station 
for obtaining the right view of the whole case, and to 
establish the principles according to which the legal 
effect of these events is to be examined, it will be ne- 
cessary, by looking back at the earlier history of the 
country, to recall to mind those facts, on which the 
public law of the duchy of Sleswic was, at that 
time, founded. 

I. — At least, since the thirteenth century, the 
duchy of Sleswic was a feoff of the kingdom of Den- 
mark. After manifold dissensions about the legal 
properties of this feoff, it was, through repeated decla- 
rations of the Danish kings, indisputably acknowledged 
to be a legitimate hereditary feoff.* As such, the 
duchy of Sleswic passed, in the year 1460, to the 
house of Oldenburgh. With the elevation of this 
house to the government of the duchy of Sleswic, 
as well as of the counties of Holstein and Stormarn, 
begins a new era for the public law of the Duchy of 
Sleswic, with a clear settlement of the affairs, as they 
were to be from that time forth. 

From the contents of the two documents of the year 
1460, we point out the important fact that the states of 
the duchy of Sleswic, and of the counties of Holstein and 

* Vide the bill of enfeoffment of the Danish King Christopher 
of Bavaria, of the year 1440, the confirmation of this bill oi' en- 
feoffment by the same king, of 1443, and the re-confirmation of 
it by Christian I., of 1455. — Privilegien der Ritterscha/f, p. 5, 13, 
28. 

n 2 



4 



Storm aril, did not accept and elect Christian I. as King 
of Denmark, but as lord of the above-named countries. 
It is, indeed, stated on this occasion that the newly-esta- 
blished dominion of Christian I. had been conferred on 
him, out of personal regard for him, and that he 
should not bequeath the countries to any of his chil- 
dren or relations : nevertheless, it is clearly authenti- 
cated that the right of dominion in the countries of 
Sleswic, Holstein, and Stormarn, founded on the 
election of Christian I., should not be limited to his 
person, but extend to his whole race, or to the whole 
house of Oldenburgh. It is to be presumed that the 
bills of enfeoffment presented to the Dukes of Sleswic, 
were composed according to the tenor of the agree- 
ment, and contained an enfeoffment of Christian I., 
his heirs and descendants.* Though the states were 
allowed the right of electing a new lord of these 
countries, as often as they became vacant, still, their 
right of election was limited to the sons of Christian 
I., or, if there were no sons, to his legitimate heirs. It 
is expressly stated in the second document of the year 
1460, as follows: — "If we, or our children, and 
heirs, should depart this life, and leave no more than 
one son, who would be King of Denmark, then the 
inhabitants of these countries may retain their free 
choice of electing the same King as Duke of Sleswic, 
and Count of Holstein and Stormarn ; in which case 
he shall be bound to confirm, improve, and swear to, 
all the articles and privileges, which we have granted 
and sealed to the above-named countries and inhabi- 
tants, and to preserve them in all their strength and 

* The bills of enfeoffment for the first dukes of the house of 
Oldenburgh are, to our knowledge, not extant. 



o 

power. If he should not agree to this, then the above- 
named inhabitants shall not be obliged to elect the 
same king as their lord ; but they shall then choose 
one of our next heirs as their lord."* 

Here, to describe the case by the law-terms now in 
use, the distinction between right of succession and 
order of succession, is very apparent. The right of 
succession was established for the whole house of 
Oldenburgh, and to the states of the duchies was 
only conceded the privilege (though but in a limited 
degree) of electing from amongst the members of the 
house of Oldenburgh, that person, who was to take 
the government of the country upon him. It is there- 
fore justly remarked in the report of the committee,^ 
that the right of election belonging to the states sup- 
plied the place of an order of succession. But the 
authors of the report have evidently not adhered to 
the distinction between right of succession and order 
of succession, in all its bearings. For in the sequel 
they have considered two very ditferent things ; viz., 
the right of succession of all the male descendants of 
the house of Oldenburgh, fit to govern, and the order 
of succession, as one and the same. 

Besides this, we have still to notice the erroneous 
assertion, that the right of succession of the members 
of the house of Oldenburgh to the duchy of Sleswic, 
as long as it was still a feofl of the kingdom of Den- 
mark, was not solely derived from their descent; but 
that its efficiency equally depended on being recog- 
nised by the feoffer, and by the states. In lookiug 
over the above -cited documents, we arrive at the fol- 

* Pi ivile<jic7f dcr Hitter sclidft. n. 
f 1'. \o, sub. VI, 



6 



lowing conclusion, that the right of succession of the 
members of the house of Oldenburgh to the duchy 
of Sleswic was solely derived from their descent, but 
that the actual entering upon the government of the 
country depended on the election of the states. The 
recognition of the feofFer, however, was neither re- 
quired by the Oldenburgh race, as a condition of their 
right of succession, nor by the elected individual for 
establishing his right of entering upon the govern- 
ment of the country ; on the contrary, the recognition 
of the elected lord by the feofFer must be looked upon 
as a duty of the latter, resulting from the feudal rela- 
tion of the duchy of Sleswic to the kingdom of Den- 
mark ; for the feofFer could not lawfully refuse en- 
feoffing him, who had been elected from the house of 
Oldenburgh, as lord of the country. Thus the states 
of the duchies have considered it; and in the first 
privilege of Christian I., containing the regulations 
concerning the election of the lord of the country by 
the states, it is expressly said, that " Whoever shall 
be elected in the manner as above described, shall 
demand and receive his feofF from his feofFer, and do 
what is lawful."^" We repeat it : The right of succes- 
S1071 to the duchy of Sleswic belonged, by virtue of their 
descent, to all the members of the house of Oldenburgh ; 
but only one of them was, according to the election of 
the states, to take the government of the country upon 
him. This was the chief and fundamental principle, 
which the states of Sleswic-Holstein, and the first 
Duke of the house of Oldenburgh, had agreed upon. 
Another principle, equally prevailing in the two 

* Privilegien der Hittersc/ia/t, p. 45. 



7 



chief documents of Christian I. is, that the countries 
of Sleswic and Holstein shall form one indivisible 
whole, and at all times have but one ruler; as Chris- 
tian I. has expressly promised, * " that the count?ies 
for ever shall remain undivided.'' It is well known 
that in the sequel neither the states nor the lord of the 
country have retained the principle of indivisibility in 
its full strength ; and the divisions of the duchies, 
which took place afterwards, have, indeed, caused dis- 
agreements, from the consequences of which our pre- 
sent time has still to suffer. 

Amongst the principles on which the public law of 
the duchy of Sleswic is founded, the perpetual 
union' between the duchies of Sleswic and Holstein 
on the one part, and the kingdom of Denmark on 
the other, established at Rendsburgh, in the year 1533, 
is likewise of great importance. The undiminished 
validity of this treaty has, at the several changes in 
the public law of the duchies, which afterwards oc- 
curred, always expressly been acknowledged, espe- 
cially in the patent of sovereignty of 1658, and in the 
peace of Travendahl, of the year 1700. This perpe- 
tual union was not only an engagement for good and 
friendly understanding between the contracting pai - 
ties, and for mutual assistance in time of war ; but it 
had a much higher and more general signification ; 
for its purport was to establish for ever between Den- 
mark and the duchies, and between the lords of the 
soil, a relation firmly based on law. Whatever dissen- 
sions niifrht arise, should henceforth no Ioniser be re- 
moved by means of war, but by amicable settlement, 



J^rivilcfjun, (>)('., p. '>\. 



8 



or by the decision of arbitrators. It is these arbitra- 
tors, that were subsequently called " Unionsaustrage^'^ 
(arbiters of the union). It was, indeed, not expressly 
mentioned in the perpetual union that the arbiters 
were also to adjust the differences of the Dukes of 
Sleswic-Holstein between themselves; but the treaty 
is composed in such general terms, that there is reason 
to suppose the arbiters of the union were intended to 
form, as it were, a supreme court of justice, which 
was to be competent to decide all political dissensions 
whatsoever. Nor are instances wanting of the arbiters 
of the union having decided some dissensions between 
the Dukes of Sleswic-Holstein ; at all events, the 
royal house at this early period continually adhered 
to the opinion of the more extensive competency of 
the arbiters of the union.^ 

Since the Dukes of Gottorp, however, maintained 
the opposite opinion, the competency of the arbiters 
of the union was, in the second article of the peace of 
Travendahl, of the vear 1700, limited to the cases 
expressly mentioned in the perpetual union ; and the 
dissensions of the Dukes of Sleswic-Holstein between 
themselves were, consequently, excluded. But at the 
same time it was expressly stipulated that the differ- 
ences which might in future happen to arise between 

* Videy for instance, Rechtmassige Ursachen, warum Ihro 
Konigl. Majestat zu Denemarck und Norwegen, etc., des Herrn 
Herzogen zu Holstein Gottorp, etc. Hochfurstliche Durchlaucht 
das unbeschrankte freie Exercilium juris armorum angemasseter 
Weise zuzugestehen keineswegs gehalten seyn- im Monat No- 
vember, 1699 ; where the indivisibility of the countries, and the 
more extensive signification of the union is very amply main- 
tained. 



9 



the two reigning Dukes, should either be settled by 
amicable arrangement between themselves, or adjusted 
through the intervention of a third party, chosen for 
that purpose A icar therefore could, even accord- 
ing to this more particular stipulation of the perpetual 
union, he as little lawfully entered upon between the 
reigning lords of the duchies, as between the duchies and 
the kingdom of Denmark. 

The divisions of the country themselves, which took 
place amongst the descendants of Christian I. are, in 
the present state of the case, of little interest ; it will 
therefore suffice briefly to mention, that, since the 
year 1544, the duchies had three reigning lords^ since 
1582 two, viz., one who was at the same time king of 
Denmark, and whose race or country was on that 
account always, even in the duchies, called royal, 
whilst at a later period the name of ( Sleswic-) Hoi- 
stein- Gliickstadt was also found ; and one of what is 
called the Sleswic Holstein-Gottorp line. Each of 
these two princes had first of all his separate portion, 
consisting of certain districts and other possessions, 
partly in Sleswic, partly in Holstein, and w^hich was 
called the private portion. But besides this, several 
important rights had remained common to both, and 
the political unity of the country, as by law established, 
was as much as possible maintained. Thus, the clergy 
and the nobility were not divided ; the diet, which 
they constituted together with the deputies of the 
towns, was common to both duchies, and to both divi- 
sions of the country. There was a joint government, 

* Hansen Staatsbeschrcibuiig dcs llerzogtliunib Scliltsuig. p. 
728. 



10 



which the lords of the soil had especially to agree 
upon. This joint government referred chiefly to the 
clergy and the nobility, who had remained undivided, 
but it was, constitutionally, to extend, and did extend, 
to all affairs of the country w^hich were of general im- 
portance, whether concerning the private portions of 
the country or the common territory. The general 
signification of the joint government for the whole 
country has, indeed, frequently been questioned, and 
one might almost say, systematically disputed by the 
reigning house of Gottorp ; nor can it be denied that 
the carrying through such a joint government accord- 
ing to strict principles, particularly at those times 
when the relation between the lords of the country 
took a hostile turn, was connected with great difficul- 
ties. But that a government comprising the whole 
country did still lawfully exist during the seventeenth 
century, is evident from many incontrovertible facts, 
especially from the various conjoint ordinances which 
are still extant, and which were issued for the whole 
country, whilst the dominion was divided. 

Many declarations of the royal government, about 
the end of the seventeenth and the beginning of the 
eighteenth century, are still extant, in which it most 
emphatically maintains this unity of the country, put- 
ting it forth as the chief argument in defence of its 
proceeding against the co-reigning duke. And if the 
Dukes of Gottorp were continually endeavouring to 
set aside this communion, as it was called, and to at- 
tain to entire and unlimited independence in their 
districts, which endeavours were partly crowned with 
success, it must be confessed that this was in accord- 
ance with the views of the seventeenth and eighteenth 

7 



11 



centuries, coucerningthe signification of princely power; 
but nothing can justify the assertion, which is to be 
found in the report of the committee,* that the king- 
has thereby acquired a right of setting aside the old 
treaties likewise. It was not a right of the Dukes of 
Gottorp, but of the countries of Sleswic and Holstein, 
that these should remain together undivided. 

And this right referred as well to the relation of the 
duchies to each other, as to that of their several parts. 
Here again just the royal line has, in former times, most 
firmly adhered to the principle of an indissoluble union. 
We deem it expedient to cite a declaration of the same. 
When, in the year 1683, the duke had petitioned the 
Emperor of Germany for protection against the claims 
of his co-reigning partner, the king, — the objection 
made at Copenhagen to this interference was, that 
Sleswic did not belong to the German empire, and 
that even Holstein, being united with Sleswic by a 
perpetual and indissoluble tie, could, for that reason, 
not have its cause decided by the emperor.f This 
declaration shows, how at that time these aflfairs were 
looked upon at the court of the King of Denmark. In 
full accordance with this is the assertion on the part of 
the king, made as late as the year 1C99, and main- 
tained with the utmost decision, that the duchies 
formed one corpus integrale, which, according to the 
old laws, could not be dissolved.;]; We subjoin here 
the following statement, made in the year 1700 on 

* Page 4. 

f (Adclung) Kurzgefasste Geschichtc dcr Streitigkcitcn, n. 5/, 
(from PufFcndorff). 

it: Vide the above quoted writing, Reclitniiissige Ui saclicn, etc', 
in actor, publicor. Fasc. A, p. G. 



12 



the part of the Duke of Gottorp. But we now 
come to the union of the duchies, according to which 
the two countries of Sleswic and Holstein are to form 
one corpus integrale, to remain for ever united together, 
and not to be separated from each other, so that the 
duchy of Sleswic shall, etiam existente casu vacantice, 
not be incorporated with the kingdom of Denmark, 
and the one of the two reigning lords not be Duke of 
Sleswic and the other Duke of Holstein."^' Just the 
last words are very striking. The indivisibility of the 
duchies was constantly adhered to in this sense, that 
Sleswic had never a reigning lord for itself^ and Holstein 
another for itself. All the successors of Christian I. 
have entered upon the government of both countries 
through one and the same act, and never has the case 
occurred, nor could it occur, that one of them entered 
only upon the government of Sleswic, or succeeded to 
both duchies by separate titles. 

II. — We have still to consider some other affairs, 
connected with the divisions of the country, which will 
lead us nearer to the principal subject of our inves- 
tigation. 

In the year 1564 the '"'private royal portion^' in the 
duchies was again divided between Frederic II. and 
his brother, the Duke John the younger. Now matters 
took such a turn that the Duke John the younger and 
his descendants stood in a different relation to the 
country from what those princes of the house of 

* Nochmalige und endliche Behauptung des freien und unbe- 
schrankten Exercitii des Schleswig-Holstein-Gottorpscljen Juris 
armorum. Im Monat Januario, 1700, s. Gl. 



13 



Oldenburgli did, who had hitherto held the govern- 
ment of the country, and who even afterwards re- 
mained the reigning lords of the soil. It is to be 
remarked that, after the death of Christian IIL, three 
sons were acknowledg;ed as entitled to succeed to the 
duchies. But one of these, Magnus, was otherwise 
portioned off by Frederic II., and left his portion of 
the country to his eldest brother. The consequence 
was, that the Duke John the younger received only 
the third part of the " royal portion" of the duchies. 
In the sequel, the Duke John the elder having died, 
and his portion of the country been, first, divided 
between the King and the Duke Adolphus of Gottorp, 
the former acknowledged likewise the claims of his 
brother, the above-named Duke John the younger, to 
a third of this acquisition, and gave him for it, accord- 
ing to a previous agreement, several possessions, as an 
equivalent. The line of this house is, from its chief 
castle, generally called that of Sonderburghj but not 
un frequently the appellation of the younger royal line 
is also used. 

The right of succession of this house of Sonderburgh, 
with regard to the private portions of the country, was 
most unquestionably acknowledged through the above- 
mentioned transactions ; but the participation in the 
joint government depended on the consent of the 
states, as long as these had the right of election. John 
the younger laid claim to being admitted as a partner 
in the government of both duchies, and the two 
reigning lords of the country, tlic King Frederic II. 
and the Duke Adolphus, were not averse to tliis de- 
mand; on the contrary, they quite approved of it. 
The states, however, when applied to by Frederic II. 



14 



on behalf of John the younger, refused doing homage 
to the latter ; but for no other reason than because it 
appeared to them, under the existing circumstances, 
neither necessary nor advisable to admit of, and to do 
homage to, a third co-reigning lord of the country.^ 
Though the claim of John the younger to participate 
in the joint government, and to receive the homage 
of the states, has been much discussed, yet it has 
remained thus, that the duke and his line were 
limited to the possession of certain parts of the coun- 
try, and not admitted to participate in the joint 
government. 

These affairs, if considered in a modern political 
point of view, would certainly appear somewhat 
strange ; but they accorded well with the political 
views which were then prevailing, particularly in the 
German principalities. On the one side, the right of 
all the male descendants of the princely house to par- 
ticipate in the enjoyment of the princely dignity, and 
of the revenues and estates connected therewith ; on 
the other side, in the once firmly established territo- 
ries, the endeavours and the right of the country, not 
to suffer itself to be entirely split to pieces, but to pre- 
serve its political unity. In consequence of this system 
it often happened that some of the members of the 
princely house, entitled to succeed, were portioned oft' 
with particular domains and possessions, whilst the 
chief government of the territory remained in the 
hands of one of the elder or otherwise superior princes. 
But the rights of the country were not everywhere as 

* Christiani, Neure Geschichte der Herzogthiimer. Vol. ii. 
p. 397. 



15 



well protected as here. The states could, doubtless, 
according to the privilege of Christian I., have re- 
sisted any division whatever, at least they would not 
have been obliged to accept more than one reigning 
lord of the country, and their consenting to elect once 
three, and then two, could not invalidate their right. 
But as little was the right of succession of the house of 
Oldenburgh in any way prejudiced by their refusing, 
in the above stated case, to increase the number of 
the reigning lords. 

It is, indeed, difficult to comprehend how the report 
of the committee can draw the inference that, through 
the refusal of the states, to admit of the Duke John 
the younger participating in the government, and 
to do him homage, the right of succession of the Son- 
derburgh line has remained doubtful.* The right of 
succession of the Sonderburgh line, with regard to the 
duchies, was not at all called in question, nor could 
it possibly be doubted, as it had only just been acted 
upon after the death of Cliristian III. In like manner 
it came afterwards again into operation after the de- 
cease of the Duke John the elder, without meeting any 
opposition. But it is equally clear, that by the right 
of succession of John the younger being in force with 
regard to the private portions of the country, the states 
could not be obliged to elect a third reigning lord. 
Circumstances were not of the kind that it could have 
come to John the younger's turn in the order of suc- 
cession through the election of tlie states, unless the 
states themselves had wished to make an exception to 
the rule. Here, too, we need only keep in mind tiie 



* Conimissionsbedenken, p. 2. 



16 



distinction between right of succession and order of 
succession, to understand the above-stated events and 
affairs in their true light, and to see that the non-ac- 
ceptance of John the younger as reigning lord of the 
country did not in the least affect the right of succes- 
sion of his descendants. The right of succession with 
regard to a country, which, according to its constitu- 
tional laws, is indivisible, is in itself an eventual right, 
and the entitled person must always wait till the time 
arrives when he shall be allowed to make good his 
claim. In the declaration of the states of 1564 it is 
even intimated that, if King Frederic II. should die 
without male heirs, no obstacle would then be opposed 
to John the younger being elected as co- reigning lord. 

How the committee could ever think of drawing 
such an inference from the above-mentioned refusal 
of the states, is the more surprising, as the feudal lord 
himself has afterwards expressly acknowledged the 
right of succession of the Sonderburgh line. In the 
treaty of Odensee of the 25th March 1579, the King 
of Denmark promised the dukes of the house of 
Odenburgh, as many as were then living, and as 
would come after them (with the exception only of 
those who had already been portioned off, and had 
renounced their rights* by special agreement) to in- 
vest them, and their descendants, with the duchy of 
Sleswic, and all appertaining thereto, including like- 
wise the Island of Fehmarn, as with an hereditary 
feoff of the kingdom of Denmark." That this promise 

* The words "and had renounced their rights," which are, 
evidently, of great importance, have, in the report of the com- 
mittee on the contents of the treaty of Odensee of 1579, been 
passed over in silence. 



17 



has also been given to the dukes of the Sonderburgh 
line, can the less be called in question, as King 
Frederick III. has still invested the dukes of the Son- 
derburgh line, in the bill of enfeoffment of the 22nd 
May, 1649, with the portion of the duchy of Sleswic 
they then possessed, and with a joint claim* (sammt 
der gesammten Hand) on this duchy and the island of 
Fehmarn, expressly referring to the treaty of Odensee 
of 1579. 

In the discussions of the committee on the joint in- 
vestitures of the house of Sonderburgh, the remark 
occursf that all investitures with a joint claim con- 
ferred on the Sonderburgh line were, as far as the re- 
searches had been carried, without exception, connected 
with the actual possession of some hereditary feudal 
estate, and never granted to any one without his pos- 
sessing such an estate ;" from which the committee 
infers that the right of succession of the Sonderburgh 
line depended on the possession of a feudal estate, and 
would be lost as soon as the latter was no longer pos- 
sessed by the line ; and that, therefore, at present, when 
none of the branches of the house of Sonderburgh are 
in possession x)f any feudal property, their right of suc- 
cession to the duchy of Sleswic must be considered as 
extinct. Inconsistent with these assertions is another 
statement, which likewise occurs in the report of the 
committee,'! and according to which an agnatic right 
of succession appears to be attributed to the Sleswic- 

* Tlie above expression denotes the eventual right of succession 
to the whole duchy of Sleswic, with which all the dukes of the 
house of Oldenburgh were jointly invested. — Transl. 

t Commissionsbedenken, p. 19. t Ifnd. pp. 17 and IS. 

C 



18 



Holstein dukes of the house of Sonderhurgh, in case 
the race of Frederic III. should become extinct in the 
female as well as in the male line. It is, therefore, 
admitted that a right of succession does exist, although 
the time of its coming into operation be very much 
deferred ! We shall have occasion, in another chapter, 
to return to this subject. 

The suppositions, by virtue of which the committee 
disputes the right of succession of the Sonderhurgh 
line, are not at all correct. Supposing that the joint 
investitures of the house of Sonderhurgh had, in all 
cases, been connected with the possession of some feudal 
estate, it would by no means follow that the possession 
of such an estate was the condition of the efficacy of 
the joint claim. An investiture with a joint claim may 
occur in connection with the possession of a feudal 
estate, but just as well without it and it is, therefore, 
a matter of perfect indifference whether the person in- 
vested with a joint claim possess any feudal property 
or not. It is, moreover, a mistake that the Dukes of 
Sonderhurgh have been invested with a joint claim 

only with regard to their possessing some feudal 
property." In the bill of enfeoffment of King 
Frederic III. of the 22nd May, 1649, all the sons of 
Alexander, Duke of Sonderhurgh, are expressly men- 
tioned by name, and invested with a joint claim ; 
though it cannot be doubted that only the eldest son, 
John Christian, was in possession of a feudal estate, 
whilst the others had, according to the statute of pri- 
mogeniture of this house, established in 1633, received 
nothing of this patrimonial estate. Lastly, it is to be 
borne in mind that the investiture of the Dukes of Son- 
derhurgh with a joint claim on the duchy of Sleswic 



19 



was not the condition of their right of succession. — 
Till the year 1579, the investiture with a joint claim 
was totally unknown in the duchies of Sleswic and 
Holstein, it being only introduced through the treaty 
of Odensee, concluded in that year. Till then the 
right of succession depended solely on the descent, 
which principle has neither been abolished nor altered 
by the treaty of Odensee, so that the investiture with 
a joint claim appears to have had no other signification 
for the Dukes of Sonderburgh than that of affording 
them a greater facility in proving their right of suc- 
cession. The investiture with a joint claim was, there- 
fore, after all, not much more than a formality.* 

Such being the nature of the premises of the sub- 
ject in question, the inference drawn therefrom falls of 
itself to the ground. 

III. — The constitution of the duchy of Sleswic 
experienced, indeed, two important changes ; first, by 
abolishing the right of election of the states and intro- 
ducing in its stead the order of primogeniture, in the 
royal house as well as in the ducal house of Gottorp; 
and secondly, by abolishing, in the year 1658, the 
feudal connexion of the duchy of Sleswic with Denmark. 
But neither the one nor the other of these changes 
could have the effect of limiting, much less of abolish- 
ing the right of succession with regard to the duchy 
of Sleswic, exclusively belonging tfo the male line. 

The duchy of Sleswic was under the house of 
Oldenburgh a male feoff ; only sons or male heirs 

♦ Vide EicJthoTJiy deutsclies Privatrcclit, s. 3o9, note n.y and 
Michelsen^ zweite polemische Erorterung, p. 34. 

C 2 



20 



could through the election of the states be called to 
the succession, and since the election was always 
made, as bylaw established, for Sleswic and Holstein 
united, any possibility of a female succession, was 
even thereby excluded. The laws of primogeniture 
for the house of Gottorp, of the year 1608, and for 
the royal house, of 1650, could therefore only arrange 
the succession for the male line of those from whom 
the laws of primogeniture had proceeded. 

The so-called patent of sovereignty for Duke Frede- 
ric III., and a similar one for King Frederic III.,* 
granting to these two reigning lords of the country 
for their sons, and descendants of the male line, the 
liberation from any feudal connexion with the king- 
dom of Denmark, without mentioning the female 
issue at all, afforded an additional proof of the duchy 
of Sleswic being acknowledged as a male feoff. 

For the dukes of the house of Sonderburgh, the 
duchy was even after the year 1658 considered as a 
feoff, and has subsequently to that time, as the com- 
mittee itself expressly mentions, repeatedly been ac- 
knowledged as such in joint investitures. How the 
committee f can, with regard to these affairs, speak of 
the anomaly "of an investiture remaining doubtful 
for an allodial country,:]: is difficult to conceive. In 
as far as an investiture took place, the country was a 

* Vide Commissionsbedenken, p. 2. 
f Commissionsbedenken, p. 14. 

J We repeat this term from the report of the committee, though 
it has never been appHed to Sleswic, and is certainly quite out of 
place here; for the abolition of feudaUtymade the Dukes of Sles- 
wic sovereign lords, but not the country an allodium. 



21 



feofF ; in as far as feudality was abolished, the investi- 
ture ceased likewise. Is there any anomaly in that ? 

The duchy of Sleswic was a male feofF. A suc- 
cession of the female line in the duchy of Sleswic 
was, therefore, from the very nature of the case, out 
of the question. The female succession was, on the 
contrary, in former times, excluded by the connexion 
with Holstein,and by the right of election of the states, 
and afterwards by the laws of primogeniture as well as 
by the patents of sovereignty. But from the affairs of 
the family, and the circumstances connected there- 
with, it appeared that the above-stated events did not 
in any way affect the agnatic right of succession of 
the Sleswic- Holstein Dukes of the house of Sonder- 
burgh, in case it should one day come into opera- 
tion. 

The report of the committee, certainly, says* that 
** since the establishment of the descendihility of the 
crown in the two sovereign princely houses of 
the duchies, that is to say since 1658, any claim of 
succession to Sleswic on the part of the house of 
Sonderburgh, was considered by the royal line as in- 
valid, as long as there was still a male or female de- 
scendant remaining of the latter." But not one word 
is said to prove this assertion, nor could it indeed be 
proved, since the contrary is as clear as the day. 
From the well-known occurrences mentioned in the 
report of the committee, would appear thus much, 
that King Frederic III. having established, in lG(iO, 

* Commissionsbedenken, p. 18. We point out the great inac- 
curacy to be found here as well as in other places, for the " de- 
scendibility" was by no means established in 1658. 



22 



tlie descendibility of the Danish crown in the male 
and female line, might have entertained the wish of 
obtaining likewise for the female line of his house the 
right of succession to the duchies; and that an 
attempt was really made in 1665, to induce the Duke 
of Plon to give his consent to an alteration of the law 
of succession in the duchies. But the attempt failed 
at that time and has not since been renewed, from 
which it is clear that Frederic III. had only a wishy but 
not a conviction founded on law, much less an actual 
right. The Duke of Plon opposed to the royal pro- 
position, the assertion, that "if his Majesty's descen- 
dants of the male line should expire, which God for- 
bid, then they would be succeeded by the dukes of the 
house of Sonderburgh, ut ordine et sanguine proa^imi- 
oresJ"^' Frederic III. then gave up this proposition 
altogether. 

The reign of Christian V. also furnishes a confirma- 
tion of the principle, that in the duchies only the 
male line was entitled to succeed. For by extending, 
in the year 1691, the order of primogeniture (esta- 
blished in the year 1650, for his portion in the 
duchies of Sleswic and Holstein) to the counties of 
Oldenburgh and Delmenhorst, which had devolved 
upon him, this king evidently acknowledged, that the 
statute of 1650 was at that time for the duchies of 
Sleswic and Holstein still in full force, and that the 
female line of the royal house was, in the duchies 
entirely excluded from the succession. f This declara- 

* Michelseny Zweite polemische Erorterung, p. 21. 
f Michelsen, Veher das Wahlrecht der Schleswig-Holsteinischen 
Stande, in Zeitschrift fiir deutches Recht, III. p. 103. 



23 



tion makes it unnecessary here to enter into the par- 
ticulars of the occupation of the ducal districts under 
Christian V. in the year 1684, which lasted till the 
treaty of Altona, in 1689. That this occupation did 
not affect the right of succession of the ducal house, 
is sufficiently proved by the old order of succession 
being again confirmed in the year 1691. 

It is undeniable, that till the occupation of the ducal 
portion in the duchy of Sleswic, by King Frederic 
IV., in the year 1713, nothing had happened to 
cause any alteration in the order of succession of the 
ducal house, and that the succession of the male line 
was, at all events, to the above mentioned year, an ac- 
knowledged and undoubted principle. This is con- 
firmed by an event of the year 1709, recorded by 
Hojer.* The royal house of Poland, (at that time 
one and the same with the electoral house of Saxony) 
being descended from the female line of Frederic III., 
had added to its title its right of succession to Den- 
mark ; but in doing so, made the mistake of naming 
also the duchies." Against this, Frederic IV. caused 
protest to be entered, because the right of succes- 
sion of the royal princesses and their descendants, 
founded on the lea; regia^ did not extend to the duchies.'' 

IV. — Before proceeding any further, we are obliged 
to cast another glance at the policy of the line of tlie 
house of Oldenburgh, which was reigning at the same 
time in the kingdom of Denmark and in the duchies 
of Sleswic and Holstein. Since the middle of tlie 
seventeenth century, it was almost continually v.n- 

* Ilojer. Lebcii Fricilricli IV., \ I. p. IM. 



24 



gaged in quarrels with the house of Gottorp, which 
was participating in the government of Sleswic and 
Holstein, and had, on its part, entered into the closest 
alliance with Denmark's enemy, the King of Sweden. 
Through the unhappy wars with this power the King 
of Denmark had been obliged to abolish the feudal 
dependence of Sleswic, and to grant those above- 
mentioned patents of sovereignty ; he was besides 
forced in the various dissensions between himself as 
duke, and the Duke of Gottorp, to give way, more or 
less, to the claims and wishes of the latter. This had 
left a bitter feeling of animosity in the mind of the 
kings, which prompted them to retaliate upon their 
successful and often insolent neighbours and cousins. 
Indeed, their policy, during the latter part of the 
seventeenth century, turned chiefly on this point ; and 
again and again they tried, under one pretence or 
another, to take away from the Dukes of Gottorp the 
before-made concessions, and to limit them as much 
as possible in their rights and privileges. To enume- 
rate each event in detail would be superfluous ; but 
one important circumstance connected with this, we 
cannot pass over in silence. The Danish kings, espe- 
cially since they had allied themselves with France, 
and were endeavouring to achieve their designs by the 
aid of the powerful Louis XIV., experienced always 
decided opposition and remonstrance from the empe- 
ror of Germany and several German princes, who 
took the part of the Duke of Gottorp, and tried to 
secure, or to regain for him, the possession of his once 
acquired rights. With regard to Holstein, the king 
was obliged to concede to them the right of interfer- 
ing, nor could he avoid the duty of defending his 



25 



measures at the imperial diet of Ratisbon, and at the 
assemblies of the circle of lower Saxony. He, there- 
fore, sought to separate Sleswic from Holstein, and 
kept the former more particularly in view, thinking 
that here he might protest against any interference 
of the Germans. Sometimes, indeed, he tried, as 
before-mentioned, to apply his manner of proceeding 
in Sleswic, also to Holstein, with which, as he himself 
said, it was connected by an indissoluble tie ; but 
finding that he could not succeed in this, he endea- 
voured at least to attain his aim with regard to 
Sleswic. 

By abolishing the feudal connection of Sleswic with 
Denmark, this kingdom appeared to have received an 
injury, which the king, in his quality of King of Den- 
mark, thought it incumbent on him to repair. At 
one time, therefore, he demanded of the duke to ac- 
knowledge him as his feudal lord, at another he tried 
to exclude him from all participation in the govern- 
ment of Sleswic. Repeatedly tlie king occupied, in 
1676 and again in 1684, the ducal portion of Sleswic, 
and both times only this part of the country ; the last 
time he caused homage to be done to him in due form, 
as the only sovereign lord of the country.* Just then 
it was, that in order to separate Sleswic in some re- 

* The assertion of Gebhardi (II. p. 2,200) that, on the 2(1 April 
1685, the king assembled the Sleswic nobihty at Gottorp, sepa- 
rated them solemnly from the Holstein nobility, and ordered them 
to draw up a document, in which they should acknowledge him as 
their only sovereign lord and king, and avow themselves to be sub- 
jects of" the kingdom of Denmark, is without foundation. Vide 
Faick, Das Ilerzogthum Schleswig, p. 172. Even the re[)ort of the 
committee makes no mciitiou of this affair. 



26 



spects from Holstein, he instituted exclusively for this 
country, a supreme court of justice,^ and confirmed 
for the first time, only the privileges of the clergy and 
nobility of the duchy of Sleswicf The latter, it is 
true, was chiefly done because the inserted clause " in 
as far as they are not opposed to our sole and sove- 
reign government of the said duchy," did not apply 
to Holstein, where the government of the king was 
neither sole nor sovereign. In general, however, it 
is not to be mistaken, that the intention was to loosen 
the connection of Sleswic^ with Holstein in some de- 
gree, but only in order to withdraw the former as much 
as possible from the interference of the emperor and 
the German princes. J It was for no other purpose ; for 
it is sufficiently clear from the above-mentioned declara- 
tions, how little inclination there was on the part of the 
king, to set aside the political unity of the duchies and 
their several parts. But it is well to keep this in 
mind, because it may be inferred from it that, also at 
a later period some alterations might be made in the 
affairs of the duchy of Sleswic, without its political 
situation^ its connection with Holstein, and its estab- 
lished law of succession, being thereby abolished or 
essentially modified, or even intended to be so. At 
the same time, every thing was tried to maintain the 
possession of the country ; promises were made to the 
emperor, if he would acknowledge and guarantee it, 
and to the duke even the cession of Oldenburgh was 
offered as indemnification. § At the negotiation of 

* Hegewisch, Geschichte der Herzogthiimer, II. (IV.), p. 299. 
f Privilegien der Ritterschaft, p. 250. 

J Hegewisch, Geschichte der Herzogthiinmer, II. (IV.), p. 299. 
§ Geschichte der Streitigkeiten, p. 69 and 72. 



27 



Altona it was still firmly refused to give Slesvvic up 
again ; the king reserved to himself in all points the 
free disposal of the country and its institutions ;^ 
though, according to the views of the committee, only 
an union of^ducal with the royal portion had taken 
place. But at last the king was obliged to yield, and 
to defer the realization of his intentions to another 
time. For the Duke of Sleswic-Holstein-Gottorp, 
having through the treaty of Altona in 1689, and 
through the peace of Travendahl in 1700, been rein- 
stated in all his rights and possessions ; the crisis ar- 
rived at last in the year 1713, which actually put an 
end to the government of the Duke ^3 Sleswic, and 
obtained for the royal line of the house of Oldenburgh 
the sole possession of the whole duchy. 

The report of the committee statesf with regard to 
this event, that King Frederic IV. had, in March 
1713, taken possession of the Gottorp portion of 
the duchies, and that the Gottorp portion of 
Sleswic had been considered as " conquered terri- 
tory." But the patent of occupation issued by King 
Frederic IV. on the 13th March 1713, extended to 
both duchies of Sleswic and Holstein, and contains 
no expressions whatever relating only to the duchy 
of Sleswic. It does not even speak of an occupation 
of the Gottorp portion. J The chief contents of the 

* Vide the declaration on the part of tlie king, presentetl on the 
3d January 1688. 
t Page 3. 

X The words run thus : "And we herewith make known unto 
them that, from very important causes, we are most graciously 
pleased to secure to ourselves the said two duchies and tlie lands 
appertaining thereto, together with their revenues." 



28 



patent is the order to pay the contributions and other 
revenues, of whatever kind they might be, no longer 
into the Gottorp coffers, but to transmit them all into 
the royal treasury of the war department. The occu- 
pation did not only affect the Gottorp territory in the 
duchy of Sleswic, but in like manner and in the same 
degree, the Gottorp portion in the duchy of Holstein. 

There are, in fact, no ordinances of the period from 
1713 to 1721, which concern the duchy of Sleswic 
alone. All measures which were taken related to both 
duchies ; and there is nothing to confirm the asser- 
tion of the committee, that the duchy of Sleswic had 
been treated differently from the Gottorp portion in 
the duchy of Holstein, that is to say, as " conquered 
territory." 

On the other hand, it is not to be denied, that the 
king had also at that time, in various ways, proved 
his disposition or intention to make his dominion in 
Sleswic permanent for the future, whilst he might 
have been aware of the little chance he had of retain- 
ing likewise the Gottorp portion of Holstein. With 
regard to this, we quote the following fact. On the 
same day on which the patent of occupation was issued, 
viz., on the 13th March 1713, the royal superintendent- 
general Dassow, was commissioned, through a re- 
script of King Frederic IV. to inspect the spiritual 
affairs in the Gottorp portion of the diichy of Sleswic, 
and ordered to alter the form of prayer in the towns 
as well as in the country, so as to make it agree with 
the prayer which had hitherto been used in the royal 
portion of the country.* Such a measure could, of 

* The rescript to the superintendent-general Dassow is to be 
found in " Nachrichten vorn Nordisjhen Kriege, vierte Fortset- 



29 



coursejhave no other consequences whatever, and the 
only thing which might clearly be proved through it, 
is the intention of the king to retain Sleswic for him- 
self. The same appears already from a treaty with 
Russia, concluded in February 1713, in which the 
Czar promised, that "he would not hinder his Ma- 
jesty from reaping whatever advantages he might one 
day, in making peace, be able to derive from the side 
of Sleswic."* The same intention, we think, appears 
likewise from a writing to the emperor, who had de- 
clared in favour of the expelled duke, and to whom 
the king replied, thatt it was certainly not his wish to 
extirpate the Duke of Gottorp entirely from his coun- 
try ; carefully forbearing, however, to speak of a re- 
stitution of things in Sleswic, and only alluding to 
those of Holstein ; to which, it is true, the interfe- 
rence of the emperor, could, in the king's opinion, 
alone refer. But above all, the treaties concluded in 
the year 1715 with the King of Prussia, and the King 
of Great Britain, as elector of Hanover, are to be men- 
tioned here, in which the king caused the possession 
and enjoyment of the ducal portion of the duchy of 
Sleswic to be guaranteed to himself. J The same thing 

zung, p. 298," and in " Wiederholter Abdruck einiger Schleswig- 
Holstein-Gottorpscher Scliriften," where the prayer itself may also 
be seen. The response given by the Faculty of Jurisprudence at 
Halle in March 1714, relating to an alteration in the prayer, and 
which was published in " I. II. l^ochmer, jus ecclesiast. pro/esta?it." 
Vol. III. p. 783, doubtless concerns this very case. 

* Hojer, Leben Friedrich IV., vol. I. p. 263. 

t Faber, Staatskanzlei, XXVIIL, p. 375. 

X The treaties have been published, as far as they arc to tlic 
purpose, in Neuc Kicler Blatter, 1844, p. 756, (December.) 



30 



the king was aiming at in the year 1684, lie now en- 
deavoured to secure in a more decided manner. 

The intermediate state of affairs in the Gottorp por- 
tion in both duchies, lasted till the year 1720, when 
the northern war was concluded by the peace of Stock- 
holm and Friedensburgh. At this peace, Sweden 
promised not to render the Duke of Holstein-Gottorp 
any assistance in his contest with the King of Den- 
mark about the duchy of Sleswic. At the same time, 
Frederic IV. prevailed upon England and France, 
through whose intercession the peace of Friedensburgh 
was established, to guarantee to him the quiet pos- 
session of the ducal portion of the duchy of Sleswic. 

The committee appears, in its deduction, to have 
attached no particular value to these guarantees,^ 
wherefore we may, here, the better abstain from enter- 
ing into any discussion about them. It is, at all 
events, certain that the guarantees given by England 
and France, did only concern the possession of the 
ducal portion of Sleswic, and that guarantees in ge- 
neral are, according to law-principles, no adequate 
means of changing a mere possession into a well- 
founded right. 

V. — Of much greater importance is the measure, 
which Frederic IV. took in the following year, 1721, 

* The dates of the documents are very incompletely and very 
inaccurately stated in the report of the committee. The northern 
peace was signed on the part of Sweden at Stockholm on the 14th 
June, on the part of Denmark at Friedensburgh on the 3d July 
1720, and ratified by Frederic IV. on the 23d July. The English 
guarantee-act is of the 26th July, and the French of the 18th Au- 
gust 1720. Vide Neue Kieler Blatter. 



31 



in causing homage to be done to him by all those in- 
Jiabitants of the duchy of Sleswic, who had hitherto 
either obeyed the joint government, or been the pri- 
vate subjects of the Duke of Gottorp. This occur- 
rence is of so great moment, that in the discussions 
which the report of the committee contains, it is made 
the chief subject and main point of investigation. We 
have, therefore, more especially to turn our atten- 
tion to that part of the report of the committee, 
which refers to this event. But to obtain a full 
and clear insight into the whole case and its legal 
consequences, it will be advisable to separate the as- 
sertions of the committee from the arguments by which 
it sought to maintain them ; for, by so doing, we shall 
be better able to decide whether those assertions have 
really been proved or not. 

The committee having mentioned the conditions of 
the northern peace, and the above-named guarantees 
obtained from England and France, goes on to refer 
to the homage of 1721, of which it speaks in the fol- 
lowing manner : " Frederic IV. thought himself fully 
entitled, ^'wre belli, to dispose of the conquered territory 
in favour of Denmark, and to incorporate the whole 
duchy of Sleswic with the latter. Nor could the king 
help looking on the duke rather as the sovereign of a 
perfectly independent country, than as his co-reigning 
partner, whom he was expelling.'' — Under such cir- 
cumstances, King Frederic IV. considered each and 
all claims of the house of Gottorp on Sleswic, in con- 
sequence of its alliance with the enemy, (the purpose 
of which had been no less than a division of the royal 
territory,) as entirely extinct ; through which extinc- 
tion this house did not only lose the right of possess- 



32 



ing, and succeeding to the Gottorp portion, but was at 
the same time deprived of its eventual right of suc- 
cession to the royal portion also/'^ — " By the patent of 
the 22d August 1721, the whole duchy of Sleswic was 
incorporated with the kingdom of Denmark, the king 
first uniting the ducal with the royal portion, and then 
incorporatingthe two united portions with the kingdom.*' 
" If the King wished to incorporate the duchy of Sles- 
wic — and he certainly did wish it — he could not in- 
corporate the ducal portion alone with Denmark, but 
was obliged to unite it first with the royal portion, in 
order to incorporate them both together with Den- 
mark. This the king did, and he said that he did so."1 
'* It was, indeed, the intention of Frederic IV., to 
make Sleswic a province of Denmark; but having 
united it as a duchy with Denmark, with which it had 
been connected as such for centuries, he did not rea- 
lise this intention. The effect of the incorporation 
was therefore limited to the duchy of Sleswic being 
thereby subjected to the Danish law of succession, and 
to a sole and sovereign government, with the legal 
and historical consequences resulting therefrom.''^ — 
With regard to other public affairs of Sleswic, how- 
ever, the intended incorporation has not been carried 
into execution. It is not, strictly speaking, part of 
the kingdom of Denmark ; but it forms, like Holstein 
and Laaenburgh, (each with its peculiar political insti- 
tutions,) part of the united monarchy. On the other 
hand, it has in common with Holstein, every thing 

* Commissionsbedenken, p. 4. 
t Ibid. p. 7. 
X Ibid. p. 9. 



33 



resultiiifr from the union, which has hitherto subsisted 
between the two duchies, and been sanctioned by his 
majesty."* 

In these deliberations of the committee, which, 
except where the context required a slight alteration 
in the construction, we have copied verbatim from 
tlie Report, a due distinction is made between the in- 
teution of Frederic IV. and what he carried into exe- 
cution. For what would it avail to appeal to intentions, 
w hich were never realized ? But in the manner of 
distinguishing between the intentions of Frederic IV. 
and their execution, the committee is neither quite 
clear, nor has it remained consistent with itself. 

We must first remark that the committee, in speak- 
ing of the intentions of the king, does not with equal 
consistency distinguish between such intentions, which, 
perchance, he may once have entertained and pro- 
nounced, and then relinquished, and those which led 
him to issue the patent and to cause homage to be 
done to him. The former are evidently of no conse- 
quence whatever, and even the latter only in as far 
as they have been realized. We shall, however, just 
notice the former in a few words. 

What we know of them we owe partly to the report 
of the committee, partly to some communications 
which a defender of the same afterwards published in 
the Altona Mercury. '\ 

The Report touches upon this subject in No. 1,J 
where, in speaking of the consultations j)receding the 

* Commissionsbedcnken, p. 12 and 13. 

t Extra Supplement of tlie 31st August, 18 Ki. 

I Commissionsbedcnken, p. 4. 



34 



patent, it mentions a declaration of the king, entirely 
his own, in which he decidedly preferred the reasons 
for the incorporation to those that were alleged against 
it. These previous consultations are afterwards again 
referred to.* If they are of that decided importance, 
as the committee itself believes, and wishes to make 
us believe, then it is indeed incomprehensible that it 
has not communicated them as fully as possible. By 
doing so it would, at least, have opened some fresh 
sources of information, since the Report supplies 
hardly any new facts and documents whatever. More- 
over, it might have been expected from an impartial 
committee, that it would have given to all those whose 
conviction was to be led and assured by its opinion, 
an opportunity of judging for themselves of documents 
which it considered so highly important. In addition 
to this, the committee has elsewhere given proofs of 
its art of interpreting so little satisfactory, that some 
doubt may reasonably be entertained of its having 
properly understood the views and intentions of 
Frederic IV. and his counsellors. We might for that 
very reason abstain from taking any notice of these 
papers and documents; for it is an acknowledged 
law-principle that an appeal to documents without 
producing them can neither furnish nor support a 
proof. It is, however, not our sole purpose to examine 
the report of the committee, such as it is; we consi- 
der it of equal importance to explain as accurately as 
possible the real state of the case, even from the scanty 
communications which we have received. 

As much, therefore, as we can gather from the 



* Commissionsbedenken, p. 9. 



35 



sparing information of the committee, and from the 
above-mentioned article of its defender, it appears 
pretty certain that King Frederic IV. has at one time 
or another distinctly pronounced his intention of in- 
corporating the duchy of Sleswic with the kingdom 
of Denmark, or, as the committee better expresses it 
in one place,* of making Sleswic a province of Den- 
mark. But that this could not be lawfully effected 
must, even at that time, have been evident at the first 
glance. How often had writers on the part of the 
king, during the lifetime of Frederic IV., spoken of 
the indivisibility of the duchies, of their political con- 
nexion with each other, and of their complete dis- 
tinctness from Denmark, and, in doing so, referred to 
the privileges of Christian I.; so that the king and 
his counsellors must also have been aware of this ris^ht 
of the countrv. From the various communications 
which have been made to us, we can likewise collect 
that several of the king's counsellors have spoken 
against an incorporation with the kingdom. In con- 
formity with this, the report of the committee very 
justly remarks that f *'the king did not realize this 
intention," and that " with regard to other public 
affairs of Sleswic, the intended incorporation was not 
carried into effect." 

After these concessions of the committee, we shall 
liave to take no further notice of the earlier intentions 
of the king, but only of those by which he was 
guided in tlie year 1721, when taking the above-mcn- 

* Commissionsbedenken, p. 9. 
t Ibid. p. 9 and 12. 

I) 2 



3fi 

tioned decisive steps, which come now under our 
especial consideration. For we certainly think it still 
necessary to consider the intention separately from its 
realization, and are of opinion that the committee has 
wished to do so too, and has only neglected, in several 
places, to make a proper distinction between the earlier 
and the later intentions of the king. 

But the intention and its realization are not the 
only points to be taken into consideration. There is 
still a third, which equally demands our attention, 
and which, though of great importance, the committee 
has not entered upon at all, viz., the legality of what 
was carried into execution. For it is self-evident that 
not all intentions, even when executed for the time, 
establish a true and actual right. Our examination 
of the case in question must, therefore, extend to the 
three following heads : — 

1. What were the intentions of Frederic IV. in re- 
ceiving the homage of Sleswic in 1721 ? 

2. What has really been executed of these inten- 
tions ? 

3. What legal signification is to be attributed to 
this occurrence ? 

VI. — The intention of Frederic IV. to incorporate 
the whole duchy of Sleswic with the kingdom of Den- 
mark, is reported by the committee to appear already 
from the hitherto known documents, viz., the patent 
of the 22nd August, 1721, and the formulary of the 
oath of allegiance, prescribed to the inhabitants of 
Sleswic. An incorporation is certainly spoken of in 
the patent, as well as in the formulary of the oath of 



37 



allegiance, and the committee is quite right in 
calling those copies of the patent incorrect in which 
the expressions, mentioning the incorporation, are 
wanting.* But we think it necessary, in the first 
place, to distinguish between the patent and the oath 
of allegiance. The report of the committee supposes 
that the incorporation was already carried into effect 
through the patent. But this is decidedly against its 
literal sense ; for it speaks only of a resolve of the 
king, and is, therefore, more especially to be consi- 
dered here, where the intention of the same forms the 
subject of our investigation. For it is said in the 
patent, and w^e have therefore resolved to unite and 
to incorporate the said portion with our own, and to 
cause for that purpose all the states of our duchy of 

Sleswic to do homage to us alone." This 

clearly proves that the homage was to realize what 
the king had resolved upon, more especially as not a 
word is said to intimate that he was already executing 
his intentions through the patent. We have, therefore, 
first, to consider only the patent, and to refer to the 
homage itself merely for the purpose of examining 
whether it may not perhaps throw some light upon 
the former. 

It does by no means appear from the patent of the 

* In the copy, which is to be found in the writing of Falck^ Das 
Herzogthum Schlesvvig, p. 86, the words in question are omitted. 
This must so much the more be ascribed to an error or mistal^e, as 
in the edition of Heinireiclis Nordfriesische Cronik, Vol. ii. p. Uoo, 
a copy of the patent is contained, which renders the passage com- 
pletely like the copy of the committee, so that the merit claimed 
by the latter, of having restored to the patent its com))lete text, 
and thereby its real meaning, does not belong to it. 



38 



•22nd August, 1721, that Frederic IV. had the inten- 
tion of incorporating the duchy of Sleswic with the 
kingdom of Denmark. 

In the first instance, the incorporation did not ex- 
tend to the whole of the duchy ; for the patent being 
only directed to the common subjects in the duchy of 
Sleswic, and speaking only of these and the inhabit- 
ants of the private Gottorp portion, it must have been 
issued merely for the common territory and the Gottorp 
portion. The royal portion of the duchy had expe- 
rienced no alteration in 1713, nor was it, according to 
the clearly expressed intention of Frederic IV. to 
experience any in the year 1721. The patent calls 
that part of the country to which it referred " the 
hitherto ducal portion of the duchy of Sleswic," com- 
prising not only the private Gottorp portion, but also 
the joint portion, that is to say, that in the govern- 
ment of which the Duke had participated. It is in 
these newly and fully acquired parts of the duchy of 
Sleswic that the homage was to be done, and an alter- 
ation in their political position to be introduced ; but 
not a word is contained in the whole patent, to inti- 
mate any intended alteration in the political condition 
of the 7'oyal portion, which was the ancestral inherit- 
ance of the royal house, and had always been undis- 
turbedly possessed by the same ; so that there was no 
reason whatever to ordain anything regarding its 
political position, or the public affairs of its inhabit- 
ants. 

The intention of the King with regard to the ducal 
portion of the duchy, is announced in the following 
words : And we have^ therefore, resolved to unite 
and to incorporate the said portion with our own,'* One 

8 



would think that the words in themselves are clear 
enough, and that nothing was intended by the king- 
but the union of the newly acquired parts of the 
country with the royal portion of the duchy of 
Sleswic, so as to form together one undivided whole.^ 
The expression refers only to an incorporation of the 
ducal portion, which the king had in view, and the 
measures taken to realize this intention were limited 
to those parts which the king had hitherto either not 
possessed at all, or at least not with the sole sove- 
reignty thereof. 

If the king points out that the homage prescribed 
to the hitherto common subjects was to be rendered to 
himself alone; if he calls the relation to be established 
between himself and these parts of the country the 
only hereditary government ; and again, if he calls 
himself, in regard thereto, the sole sovereign lord of 
the country, it is in perfect agreement w^ith the above, 
and denotes the new order of things as being com- 
pletely like that which had hitherto taken place in 
the royal portion of the duchy, and which was just 
then being established throughout the whole duchy, 
by the exclusion of the Duke of Gottorp. 

In the second instance, it must be sufficiently clear 
from what we have hitherto said, that an incorporation 
with the kingdom of Denmark is not spoken of in the 
patent, nor even hinted at by a single word. The 
kingdom of Denmark is not named as the country 

* Tlius, in the above quoted writing, published on the part of 
the King, it is said of the termination of the first division (Actor, 
publ. fasc. 4, p. 25): "Wliereas the conditions of the division ex- 
pired with the extinction of the posterity of the before-named King, 
the two portions of the country were re-consolidatcd nilo one. body." 



40 



with which the incorporation was to take place ; it is 
not even mentioned in that part of the document ; and 
it is indeed almost impossible to conceive how it could 
have entered the mind of any one to introduce it 
here, where it neither is named, nor could be named, 
because it had nothing to do with the affair. 

The committee has, nevertheless, endeavoured, by 
an interpretation of the most extraordinary kind, to 
deduce from the patent of 1721 the very opposite 
opinion. The above quoted sentence, in which the 
king declares that he had resolved to unite and to 
incorporate the ducal portion of Sleswic with his own, 
the committee has thought proper to understand thus, 
that he intended to incorporate the whole duchy of 
Sleswic with the kingdom of Denmark. Such a con- 
clusion the committee could only arrive at by supplying 
a great many things, of which not a word is said in 
the patent, that is to say, by means of an interpreta- 
tion which will enable any one to convert even the 
clearest sentence into whatever he pleases. We copy 
from the report of the committee the following most 
singular passage :^ Through this patent the whole 
duchy of Sleswic was incorporated into the kingdom 
of Denmark. In order to perceive this, it is only 
necessary to read the words, *'to unite and to incor- 
porate the said portion with our own," as they ought 
to be read, viz., to unite the ducal with the royal por- 
tion, and to incorporate (it) with (i. e., together with) 
the royal portion. The meaning was, of course, to 
incorporate the two united portions into the kingdom 
of Denmark. ''^ The committee must, indeed, have 



* Commissionsbedenken, p. 7. 



41 



fancied strange readers, who would be taught reading 
in such a manner ! it must have very peculiar ideas 
of the way in which documents ought to be interpreted 
to come forth with such assertions ! And how weak 
and destitute of sound proofs must be a cause that re- 
quires to be supported by such arguments ! 

The words and to incorporate" can, according to 
the construction and natural interpretation of the sen- 
tence, only refer to the ducal portion, nothing whatever 
being said in the patent of an intended incorporation 
of the royal portion. To be fully convinced of this, we 
have only to remind the reader of the usual custom of 
joining together synonymous words and phrases in the 
language of documents. What intelligent person can 
have any doubt of the expressions " to unite and to 
incorporate" belonging immediately together? Who 
does not see at the first glance, that they denote one 
and the same act, the latter word merely strengthen- 
ing the former? If the words were to be understood 
differently, that is to say, if they were to denote two 
essentially different acts, viz., the union of the ducal 
with the royal portion, and the incorporation of the 
two united portions with the kingdom of Denmark, it 
would have been necessary to name the whole duchy 
of Sleswic after the words to incorporate," in order 
to express what was intended to be incorporated. But 
nothing of the kind is mentioned in the text. 

If the committee tries to support its interpretation 
by remarking* that "the duchy of Sleswic could not 
in any other way be incorporated into the kingdom of 
Denniark, than by first uniting the ducal witli tlni 



* Connuibsionsbcdcnkeii, \k 7. 



42 



royal portion, in order to incorporate them both 
together into Denmark," and that " the parts of the 
country which formed the portions of the king, and of 
the house of Gottorp, had already been incorporated 
with the duchy of Sleswic, as long as the latter 
had existed, and could, for that very reason, not again 
be incorporated into each other, but only into Den- 
mark the justness of these remarks is as much to be 
denied, as it is impossible to perceive, even if they 
were true, how any thing might be gained thereby for 
the right comprehension of the patent. For, in the 
first place, there is no reason why both parts of the 
country could not, at the same time, be incorporated 
with the kingdom of Denmark without having been 
previously united ; and, in the second place, it is not 
mentioned at all that the parts of the country were to 
be incorporated into each other ; it is, on the contrary, 
clearly expressed that only the ducal portion was to be 
incorporated. Nor does the grammatical construction 
admit of any other explanation than that the ducal was 
to be incorporated with the royal portion, so that the 
former should, as such, altogether cease to exist, and 
the whole duchy form, henceforward, one undivided 
territory. To this explanation the committee objects 
that it is not in agreement with the idiom of the 
German language, a country not being incorporated 
''with^'' but '^into' another. But we must appeal to 
the usual custom, in joining together two verbs, relat- 
ing to the same substantive, of not regarding, whether 
the second verb require another preposition, or not ; 
but of simply joining it to the first.* This may be 

* It is, however, to be remarked that in the Danish language the 
expression " indlemme 7ned" is not unfrequently used. Vide, for 



43 



called an incorrectness of style ; but it is completely 
sanctioned by usage, and in itself so very trifling if 
compared with that which the interpretation of the 
committee would imply, that it is, indeed, to be won- 
dered at how, after such an example, the committee 
may enter into any grammatical consideration what- 
ever. For, according to its opinion, the preposition 
icith, in the words with our own,'' is not only to relate 
to the verb to wnite" so as to denote the part of the 
country with which the union is to take place ; but, 
at the same time, to have the signification of together 
with,'' in reference to the following verb to incor- 
porate,'' which must appear to the critic as a gross 
violation of the rules of the language, and to the law- 
yer as an evident defacement of the law. 

Besides, if this be the right interpretation, no men- 
tion whatever is made of the country into which the 
incorporation was to ensue, and it is left to our own 
imagination to supply it. But can any one seriously 
suppose that such an omission has really taken place. 

The committee, to maintain its opinion, points out 
a passage in the patent of 1721, in which the king 
declared that he had been induced to re-possess him- 
self of" the Duke Charles Frederic's portion in the 
duchy of Sleswic as an appurtenance, unjustly torn 
away from the crown of Denmark in troublous times." 
But it is to be remarked that this passage is only to be 
found in the historical part of the patent, and that, 
even here it is not said that, the ducal portion had been 
taken possession of for the crown of Denmark ; but 

instance, the translation of Ilojer's public law, p. 41, where the 
words at indlemme det med Denmark'^ occur in a passage, treating 
of these very events. Vide also p. 48, n. 



44 



only that in former times it had unjustly been torn 
away from it, which evidently refers to the abolition 
of feudality in the year 1658. But where the king 
speaks of his actual intention, neither the crown nor 
the kingdom of Denmark is mentioned. 

If, however, the committee should be of opinion 
(although it has not exactly pronounced it) that the 
patent ought to be explained from the formulary of the 
oath of allegiance, where it is said that the king in- 
corporated the ducal portion with his crown," this is 
by no means to be granted absolutely. For in other 
respects also the two documents differ essentially from 
one another, which will be shewn hereafter ; but more 
especially here, where the king speaks of what he has 
resolved upon doing, it appears highly necessary not 
to add anything to the text. Serious consultations 
are known to have been held concerning the measures 
which were about to be taken ; the king had made up 
his mind not to realize the intentions he had formerly 
entertained ; it is, therefore, to be supposed that he 
clearly expressed his final and actual intention which 
he openly announced to the country, and to all the 
powers of Europe (for the patent was published at the 
same time), as his resolution. We will not at present 
anticipate the inquiry into the signification of the word 
crown, but we most decidedly protest against the com- 
mittee introducing here the kingdom of Denmark, of 
which no mention is made by the king himself, and 
which was not in any way concerned in the event that 
occurred entirely within the limits of the duchy of 
Sleswic. 

From two accounts of this event, which were written 
at the time it occurred, it appears that the cotemporaries 



45 



also considered it only as a union of the ducal with the 
royal portion of Sleswic. The European Fame' of 
the year 1721,* where a short extract is made from 
the contents of the patent, says, "that his Majesty had 
thought proper to take possession of the said duchy of 
Sleswic, in order to unite it for ever with the royal 
Holstein." This is still more clearly expressed in the 
" Mercure Mstorique et politique'' of the same year, in 
the number for September,! where we find the follow- 
ing statement : — " Le preamhule de Vacte pour I'hom- 
mageporte entre autre, que Sa Majeste Danoise ajuge 
a propos, de semparer du duche de Sleswyck, pour Vin- 
corporer a perpctuite au duche royal de Holstein.'' — 
Holstein denotes in both places the united principali- 
ties of Sleswic and Holstein, in which sense it was 
frequently used at that time ; and the meaning is, that 
the ducal portion had been united, and incorporated 
with the royal portion of these principalities. 

By comparing the patent of 1721 with that issued 
in 1684, when a similar union of the ducal with the 
royal portion was established, the committee has en- 
deavoured to prove, that in the year 1721 something 
different was intended from the year 1684. But by 
merely comparing the contents of the patents, inde- 
pendent of the oaths of allegiance, we cannot, indeed, 
discover any real difference. The two patents do not, 
however, relate to one and the sanie case,J and there- 
fore the words certainly differ essentially. Tlie com- 
mittee thinks it of great importance that neitlier tlie 

* Vol. CCXLI. p. 1002. t VI. 5. 

X Very different from the patent, tlic conclusion of wliicii tI)C report 
of the committee communicates (p. B), is that of the 2.Sth June, de- 
manding the homage, and comes much nearer to the patent of 1721. 



46 



word incorporate/' nor any mention of the former 
relation of Sleswic to the crown of Denmark, is to be 
found in the patent of 1684. But both circumstances 
are of very little moment, and have already been dis- 
cussed in the foregoing pages. 

With regard to the former relation of Sleswic to the 
crown of Denmark, we need here only repeat the 
remark that, its mention in the patent of 1721 occurs 
only in the explanatory or historical part, but not 
where the king speaks of his actual intention. 

As for the word incorporate," it has already been 
observed, that it is immediately connected with the 
preceding verb to unite," and that its purport is to 
set forth this union more emphatically. But we too 
are inclined to suppose that this word has not been 
used quite accidentally as it were, and without any 
particular signification ; but, that it was meant to 
convey some distinct idea. However, this idea was 
not to incorporate the duchy of Sleswic with the king- 
dom of Denmark (such an important, and wholly 
unjustifiable measure, would, surely, have required 
more explicit words and means!) but, to unite the 
ducal with the royal portion more firmly and more 
permanently than it had hitherto been done. More 
than once this union had been attempted, but as often 
dissolved again ; now, Frederic IV. wished to retain 
his acquisition, to exclude for ever the claims of the 
dukes of Gottorp, and to secure to himself, for the 
future, the sole sovereign possession of the duchy. 
Not being able to change the country into a province 
of Denmark, he did as much as he could ; he united 
the ducal portion as closely as possible with his own, 
and denoted this union by the word "incorporate," 



47 



which was a favourite expression at that time.* We 
must repeat that the words themselves do not permit 
us to think of any thing but the royal portion, with 
which the incorporation was to take place. But 
whether it was, perhaps, not quite unintentionally that 
this has been expressed with a slight incorrectness of 
style, and that the word ** incorporate" has been placed 
thus by itself at the end of the sentence without any 
further addition, f we will not take upon us to decide. 
Even in this case, however, we maintain that it can 
only have been done to give greater strength to what 
was already expressed by the word " unite," and that 
the kingdom of Denmark remains, at all events, quite 
out of the question. 

It would almost appear as if the committee had been 
at a loss where to find reasons for its view, for it has 
not disdained to copy, verbatim, a passage from Tlojers 
life of Frederic IV., in which mention is made of an 
altered position of the Sleswic arms in the royal shield. 
The passage is as follows^ : *' King Frederic having, 
by that time, become the sole sovereign of the duchy 
of Sleswic, and completely united its possession with 
his sceptre, thought proper to remove the Sleswic arms 
from the centre of the shield, where they had hitherto 
occupied the first place, into the upper part amongst 

* In a former declaration King Christian Y. lias denoted his pro- 
ceeding by the word " consohdate," which was Hkewise intended to 
express something more than merely to unite. Vide the royal de- 
claration of the year 1688 : " To take possession of the ducal portion 
of the Duchy of Sleswic, and to consolidate it with our own." 

f In the original the words run thus : — ** Selbigen Anlhcil mit 
dem Unserigen zu vereinigen und zu incorporiren." — Transl. 

: Vol. II. p. 53. 



48 



the sovereign countries and those provinces which 
were situated without the limits of the Roman Empire; 
thus leaving- the centre of the shield only to the three 
principalitiesof Holstein,Stormarn,andDithmarschen, 
belonging to Germany, and the lower part to the 
counties of Oldenburgh and OClmenhorst. So it re- 
mained till the death of King Frederic, when it was 
again altered and the former arrangement of the whole 
royal shield restored." 

With regard to this account of the historian Andrew 
Hojer, it is to be remarked, that he does not here 
assert that an incorporation of the duchy of Sleswic 
with the kingdom of Denmark had taken place ; nor 
could he, indeed, assert this, since it is well known 
that in his lectures on the public law of Denmark 
and the duchies, he has said the very reverse, 
viz., that in the year 1721, no incorporation of the 
duchy of Sleswic had taken place.* It is, moreover, 
clear that an incorporation with the kingdom of Den- 
mark, would be incompatible with the expression of 
*' King Frederic having, by that time, become the 

* Hojer's Jus 'publicum, or public law of Denmark, Norway 
and the Duchies, published by Bredsdorf, at Christiana, 4to, 1783, 
is only a translation of a Latin manuscript, badly written by a 
student from his lectures at college, and of so little value that the 
work is quite unworthy of such a man as Andrew Hojer. We 
shall, however, notice some of the remarks contained therein. P. 
41, Hojer says, concerning the duchy of Sleswic, that the king 
had certainly the right to incorporate the duchy with the king- 
dom of Denmark ; but that, to effect this, a distinct declaration of 
the king to that purpose would be required, which till then (i. e. 
in the year 1737 or 1738, when the lectures were held) had not 
yet appeared. It was another question, whether such a measure 
would, or would not, be advisable. 



49 



sole sovereign of the ducliy and from the author's 
remark, that the Sleswic arms had been placed 
amongst the sovereign countries, it would almost 
appear that he considered Sleswic more as a sovereign 
country, than as an incorporated province. If^ Hojer 
observes, that King Frederic IV. had completely 
united the possession of the duchy of Sleswic with 
his sceptre, he speaks of something different from an 
union with the kingdom of Denmark; for the word 
sceptre" denotes here, according to the style of 
those days,* the whole of the countries, under the 
dominion of king Frederic IV; and the sentence evi- 
dently refers to the exclusion of a participator in the 
government of the duchy of Sleswic. The expression 
of the king having completely united the latter with 
his sceptre ;" implies, that part of the duchy had 
already been under his sceptre before that. Besides, 
no authentic declaration of Frederic IV. being extant, 
concerning the reasons which induced him to make 
the alteration in the royal shield, it would, indeed, be 
going too far, to lay an}^ great stress on the above 
account of the historian. At all events, thus much is 
certain, that in the statement of Hojer the distinct 
idea of an incorporation is not expressed, and that at 
Copenhagen, the alteration in the shield, made under 
Frederic IV. cannot have been considered of any 
great importance, since after the death of this king, 
the former arrangement of the whole royal shield was 
restored . 

Glancing over the whole discussion, as far as it lias 
hitherto been carried on, we may pronounce as its 

* Vide tlic Appendix, on the signification of tlic word crown. 

E 



50 



indubitable result, that the committee has not suc- 
ceeded in proving its assertion, that Frederic IV. has 
entertained and expressed the intention of incorporat- 
ing Sleswic with the kingdom of Denmark. 

It would be another question, though not raised by 
the committee, whether the king had declared it to be 
his intention to alter the succession in the duchy of 
Sleswic, and without incorporating it with the king- 
dom, and subjecting it to the royal law, to make it, 
notwithstanding, dependent on the order of succession, 
prescribed by the latter. We speak here again only 
of what the king himself has clearly pronounced as 
his opinion. The committee does not say that ac- 
cording to the documents, to which it had access, the 
king had, in abandoning his former plans, retained 
this idea ; nor do we know of any other communica- 
tions, from which this might be inferred.^ We are 
here, on the contrary, more than ever obliged, to con- 
fine ourselves to the patent in which one would 
imagine, that the king would completely and dis- 
tinctly express his intention. And, indeed, in the 
main point, he has done so, by saying, that the hither- 
to common subjects should render him the oath of 
allegiance, as their now sole sovereign lord, but those, 
who had hitherto been the subjects of the Duke of 
Gottorp, as their sole sovereign lord. But he does 
not add another word concerning the nature of the 

* At all events, we cannot consider as such, a speech of BreitC' 
nau, the former president of the German Chancery, communicated 
in the above-quoted article of the Altona Mercury ; nor do we 
know it precisely and completely. What has been published 
proves nothing for the establishment of the succession according to 
the royal law. 



51 



oath, and the successors to whom it was to extend. 
The words " sole sovereign lord " have already been 
discussed ; they refer to the position of Frederic IV., 
as duke of Sleswic ; but do not apply to him as abso- 
lute and hereditary king of Denmark, to denote whom, 
the royal law makes use of very different words from 
the above, which belong more especially to the public 
law of Sleswic* Besides, some stress is to be laid 
on the word '^now,'' which occurs in the first part of 
that passage, and which is also used b}^ Hojer ; lord 
of the country, and sovereign lord of the common 
subjects the king had already been before ; hwi now 
he had become the sole lord. This, and nothing more, 
was the change which had taken place, and with 
regard to this, and only this, the king demanded a 
new homage. He has, therefore, clearly enough pro- 
nounced his intention as to the oath of allegiance, 
which was to be taken, though he has certainly added 
that the common subjects should be more particu- 
larly informed of his most gracious intention in this 
respect, and the inhabitants of the private Gottorp por- 
tion of his most gracious will. But surely this inten- 
tion and this will could not be in opposition to all that 
had preceded ; it was a matter of course that they 
were to agree with it. 

What Frederic IV. intended in they ear 1721, will 
now appear in a clear light. He wished to exclude 
the duke of Gottorp from all participation in the go- 

* We need scarcely observe to the intelligent reader, that the 
word " sovereign' whenever it is applied to the duchy of Sleswic, 
or to any other country at that time, refers only to the abolition 
of tlie feudal dependence of the same, but not to the relation of the 
lord of tlic country to his subjects. 

i: 2 



52 



vernment of the duchy of Sleswic, to unite the ducal 
districts, which he had occupied, with his own portion 
of the countr}^, to secure their permanent possession 
to himself, and to receive homage as the now 
sole lord of the country. These are the intentions 
which he pronounced in the patent of the 22nd 
August, 1721. And now we shall see how far these, 
his intentions, were realized through the oath of 
allegiance. 

VII. — With regard to the act of homage the com- 
mittee first ^observes, that for the acknowledgement 
of the sole sovereignty in the royal portion no local 
homage would have been necessary. This is quite 
right ; for the sovereignty in this part of the country 
was acknowledged since 1658, and could not by any 
means be doubted. But the same may be said of the 
succession in the reigning house, which was settled 
for the royal portion in the year 1650, by the statute 
of succession of Frederic III., which, according to his 
own words, was to be "an everlasting law of our 
royal line of our princely house of Sleswic Holstein."t 
If, therefore, instead of the succession, established by 
this law of primogeniture, another succession was to 
be introduced for the royal part of the country, this 
ought to have been openly declared ; the intention of 
altering the succession in the royal portion ought to 
have been clearly pronounced, and ought to have been 
carried into effect. But no trace of all this is to be 
found. We have already remarked, and we repeat it 
here once more, that the patent of the 22nd August, 

* Commissionsbedenken, p. 10. 
f SamweVf Staatserbfolge, p. 15. 



53 



1721, was not issued for the royal portion of Sles- 
wic at all, that it had no reference whatever to its 
political position, and could not, therefore, have any 
legal effect on the affairs of this territory.* 

Tlie committee, however, is endeavouring to prove 
that an alteration in the succession has taken place ; 
but the reasons for this assertion are incredibly 
weak. 

It is alleged first, that, with regard to the succes- 
sion, the statute of succession coincides with the 
royal law, excepting the order of succession for the 
female descendants of Frederic III., contained in the 
latter," and that the royal law was merely a " sup- 
plement" to the statute of succession. A strange sup- 
plement, indeed, by which the former law is com* 
pletely abolished ! The contents of the statute of 
succession consisted by no means only of a regulation 

* One circumstance, which, to our knowledge, has not yet been 
pointed out, we shall notice here in a few words. The patent de- 
cidedly relates only to the hitherto common subjects, and to those 
of the Duke of Gottorp, and proclaims how they were to be dis- 
posed of, and in what manner the oath was to be taken by them. 
Not a word about the royal subjects, by whom the oath was, con- 
sequently, not taken. Nevertheless, the king says, that he would 
" cause, for that purpose, all the states of his duchy of Sleswic, 
as clergy, nobility, citizens, inhabitants of boroughs and villages, 
and other subjects, to do homage to him alone, through certain com- 
missaries, thereunto authorised and appointed." Strictly speaking, 
therefore, he has done even less than he himself had found neces- 
sary for the purpose of establishing a real political unity of the 
duchy of Sleswic. If, to attain this end, he has, indeed, thought 
it requisite, to receive new homage from the royal subjects, it can 
only refer to their position being so far altered, as any [)ossibility 
of their being subjected to a joint government, was now for ever 
precluded. 

I 



54 



of the succession amongst the male descendants, but 
it ordained at the same time the total exclusion of the 
female line, which, according to the royal law, pre- 
cedes the agnati of the house of Oldenburgh. This 
relation of the two statutes to each other, demanded a 
declaration that the older statute was to be abolished; 
a declaration which was never made. 

The committee says, secondly, that " there was no 
occasion for publishing the royal law, in order to 
make it valid for the succession." Considering the 
manner in which family-settlements and statutes of 
inheritance were treated at that time, we can make 
no objection to this assertion ; for it was, indeed, the 
rule that family-settlements and statutes of inheritance 
were not at once formally published, but only when a 
case occurred, in which they might be of any practi- 
cal use. Nevertheless, this assertion of the commit- 
tee is, for our present case, of no consequence what- 
ever. For although a statute of succession did not 
require any immediate publication, it was, at all 
events, necessary that it should exist. But for the 
duchy of Sleswic, and even for the royal portion of 
it, the royal law had no legal existence whatever, nei- 
ther in the one quality nor in the other; it re- 
quired, therefore, at least a declaration, that the royal 
law should, as statute of succession, extend over the 
royal portion of Sleswic. A declaration to this effect 
has never been made, it has not even been asserted 
by the committee. Every reason, therefore, is wanting 
for applying the decrees of the royal law relating to 
the succession, in any way, to the royal portion of the 
duchy of Sleswic. 

The committee, in order to prove the establishment 



55 



of the royal law, as statute of succession, in the royal 
portion of Sleswic, asserts, thirdly, that at the homage 
of 1721, the clergy and nobility had appeared as 
representatives of the states of the whole duchy, in as 
far as, in connexion with the great landed proprietors, 
a representation of the states of this duchy, as a poli- 
tical country,* was still possible." But this appre- 
hension of the affair is evidently founded on a mis- 
take. The great landed proprietors, who were not of 
nobility, had no share in the representation of the 
states of the duchies; nor did the clergy, the no- 
bility, and the possessors of large estates, according 
to all documents, in any way appear in the quality of 
representatives ; they did homage as single indivi- 
duals, as hitherto common subjects. Only at a regu- 
lar diet (and according to the constitution of those 
days, the duchy of Sleswic had no separate diet at all, 
but only one in common with Holstein'j ) the clergy 
and nobility could have appeared, together with the 
citizens, as representatives of the whole country. But 
if they had really been such, why did they not at the 
same time represent the hitherto ducal portion of the 
duchy of Sleswic? Why was it still thought necessary 

* This expression is literally copied from the report of the com- 
mittee, which probably meant to say, " political body." 

f To the strangest assertions of the committee belongs also the 
following, (p. 10) : " History had prepared the abolition of the old 
Sleswic-IIolstein diet, and the declarations of sovereignty com- 
pleted it.'' We doubt whether a person well acquainted with his- 
tory and the laws, will be able to find any sound sense in these em- 
phatic words. By the declarations of sovereignty can only be 
meant the documents of l()o8 ; for there are no other in our country. 
But at that time, the abolition of the diet was by no means completed, 
and the committee itself speaks of the last diet of the year 1712. 



56 



to cause homage to be done in the several districts of 
the private Gottorp portion, whilst in the royal por- 
tion nothing of the kind took place?* 

From all these facts and considerations it appears 
that in the year 1721 the royal portion of the duchy 
of Sleswic did not, and could not, experience the least 
alteration in its public law, or in its law of succession. 
This result is of the greatest importance ; for the ducal 
portion of Sleswic, which the King had taken posses- 
sion of, being united with the royal portion, and in- 
tended to form, together with the latter, one undivided 
territory, it must reasonably be supposed that in the 
joint portion of the country and the private Gottorp 
portion no alteration can have taken place, which 
would be in opposition to the then existing political 
law of the whole duchy. 

According to the opinion of the committee, however, 
the succession of the royal law was established through 
the homage rendered, in 1721, by the common and 
private Gottorp subjects. This alteration is said to 
have been effected partly by means of the supposed 
incorporation, partly by the oath of allegiance being 
rendered to Frederic IV. and his royal successors in 
the government, secundum tenorem legis regice. Both 
points deserve a separate consideration. 

The subject of our present inquiry obliges us to 
leave the patent, and to turn to the oath of allegiance, 
through which, according to the clearly expressed in- 

* According to the above remark (vide p. 53) it was, perhaps, 
here too intended, but not executed; that is to say, it was thought 
necessary, though not carried into effect. • It was, however, not 
thought necessary for the sake of estabhshing the royal law or its 
succession, but for reasons much inferior. 



57 



tention of the King, the incorporation was to take 
place. If the committee believes that the incorpora- 
tion was already carried into effect through the patent, 
we are certainly of a different opinion, and must 
refer the reader to what has already been said of the 
contents of the patent, which, for the question now 
under consideration is of the greatest importance. 
The patent, as has been shewn, does not at all men- 
tion an incorporation with the kingdom of Denmark, 
nor an alteration of the succession. The only ques- 
tion, therefore, is, whether the one or the other was, 
nevertheless, brought about through the homage. 

Although it must be allowed to be most probable 
that only so much was carried into effect as the King 
had previously announced as his intention, and that, 
afterwards, nothing different from what had before 
been proclaimed, was brought about; still it requires 
a careful investigation into the sense of the words 
which are to be found in the formulary of the oath of 
allegiance, to see whether they convey the idea of an 
incorporation with the kingdom of Denmark, or of an 
alteration of the succession. 

The construction of this oath of allegiance, taken 
on the 3rd and 4th September, 1721, tends only to 
confirm our former remarks on the incorporation ; for 
here too it is said in the beginning that the King had 
been pleased '*to unite the hitherto ducal portion of 
the duchy of Sleswic with his own." It is, therefore, 
at all events, the ducal portion only that underwent 
an alteration, since even the oath does not mention 
that anything had been, or was to be, done with tiie 
royal portion. It is certainly added, that the King 
" had for ever re-incorporated with his crown" tlu^ 



58 



hitherto ducal portion of the duchy of Sleswic, " as 
an old appurtenance torn away from it injuria tempo- 
rum'' But it is utterly unfounded, and in no wise to 
be justified, to consider the expression, " his crown," 
as synonymous with the kingdom of Denmark.'^ 
Even if the expression had been the crown of Den- 
mark," there would still be an essential difference. 
But here again, the committee calls to its aid the 
documents of the previous consultations, which, al- 
though frequently referred to, have, nevertheless, not 
been produced, and have hitherto remained unknown. 
It has, however, already been observed, and need not 
here be repeated, how little is effected by such a re- 
ference. If those documents speak of the intention 
of the King lo make Sleswic a province of Denmark, 
this intention has afterwards been given up, and can- 
not possibly contribute anything towards explaining 
the expression which has here been used. The word 
" crown," as well as the word sceptre," which is 
used by Hojer, is evidently nothing but a figurative 
expression for the whole of the royal dominions, of 
whatever kind and description they might be. We 
shall treat more fully of the signification of this word 
in a separate appendix, and shall show how often it 
has been used in this general sense ; we shall parti- 
cularly adduce some instances, in which countries 
belonging to the German empire are said to have 
been incorporated with the crown of Sweden, though 
their pohtical position in the German empire was 
thereby not in any way affected ; we shall even prove 
that the royal portion oi Sleswic and Holstein was 
already, before the event of 1721, described as apper- 
taining to the crown of Denmark, whilst no one, not 



59 



even the committee, has ever entertained the least 
doubt of this territory being, then, in every respect 
separated and divided from the kingdom of Denmark, 
and having only one and the same reigning lord. The 
figurative and general expression of " crown of the 
country," has almost become synonymous with the 
king of the country. But if a sovereign has several 
countries and dominions, he is always, even with 
regard to his other possessions, spoken of by his higher 
title, chiefly by that which is derived from a kingdom ; 
and as the duke of Sleswic and Holstein, who was at 
the same time king of Denmark, was regularly called 
after this, his higher dignity ; as his private portion 
of the duchies went by the name of the royal portion, 
or the portion of the king of Denmark ; in like man- 
ner his possessions were spoken of as possessions of 
the crown of Denmark, which expression was used 
with still more reason whenever it was meant to de- 
note the whole of the countries under his dominion. 

The present discussion affords us a good opportu- 
nity to point out some other circumstances, the consi- 
deration of which appears necessary for the clear 
comprehension of these events. 

The end of the seventeenth and the beo-inning: of 
the eighteenth century, was the time when the per- 
sonalit}^ of the sovereigns of Europe became more and 
more conspicuous in all political and public afl'airs ; 
when the saying attributed to Louis XIV., ^* rctat ccst 
7noiy'' seemed to be verifying itself in the most decided 
manner. Tlie rights of the states, of the corporations, 
and of the people in general, gave, or were to give, 
way to the sovereign and absolute government of tlie 
princes ; and all tiic diversities wliich resulted from 



60 



nationality, territorial independence, rights of the 
people, and various other causes, were obliged to 
yield to the unity which was, often by the merest 
chance, established throuo;h the sovereiorn. These 
diversities were not abolished ; they were, on the 
contrary, in most cases at least, allowed to continue ; 
but they were made subordinate to the idea of unity, 
which seemed to be represented in the person of the 
sovereign. The expression, " united monarchy" or 
state," was then not as common as it is now; instead 
of which the word crown, or some other figurative 
expression, was used, to denote a unity of longer dur- 
ation than the age of man. This unity was sometimes, 
indeed, by law established, chiefly in France ; much 
less in those countries which were united under the 
reigning houses of Spain, Austria, Sweden, and others; 
least of all, perhaps, in those which were governed by 
the King of Denmark. The circumstance of Holstein 
belonging to the German empire, the twofold, and in 
some parts joint, government of Holstein and Sleswic, 
and the totally separate constitution of the kingdom 
of Denmark and Norway under the royal law, w^ere 
most decided obstacles to a closer union. Neverthe- 
less it happened even here that the whole of the coun- 
tries, which were governed by the King, and which, in 
foreign affairs, were usually not distinguished from 
one another, was considered as a unity, though not a 
necessary one. We shall quote here a passage, which 
will explain the above. In a Memoir of the Elector 
of Brunswick, at the beginning of the eighteenth cen- 
tury, it is said,^ that at the peace of Westphalia, 



Faber, Staatskanzlei, xxix. p. 334. 



Svveden received the territories of northern Germany, 
more especially Bremen and Verden, " in order to 
keep Denmark the better in check, and to surround 
the said ci^own more completely through the territory 
of Bremen." This has no sense, unless Holstein and 
Sleswic were included in Denmark ; though it need 
not be remarked that there was at that time between 
these duchies and the kingdom of Denmark no other 
political connexion whatever than that established by 
the treaties of union. 

We do not think that by this discussion we have 
digressed from the main question ; for after this it 
will not be surprising that the King of Denmark also, 
though well aware of the difference of his countries 
with regard to their political position, considered 
them occasionally as a whole, and denoted them as 
one territory, united under him and his successors. It 
will, more especially, be found very natural that, 
according to the idiom of that time, he should speak 
of his crown in this sense. ''^ We are, therefore, cer- 

* To prevent all misunderstandings, it may here be observed, 
that the expression, " crown" does not refer to the ducal crown 
of the king, as some have supposed ; for the word is only used 
with reference to a country to which, or a sovereign to whom, at 
least a kingdom belongs. Should it, however, be asserted that the 
exj)ression, " croivn" must refer exclusively and solely to the crown 
of the kingdom of Denmark, because of the following words, as 
an old appurtenance, torn away from it, injuria temporum,'' and 
the corresponding passage in the patent, " as an appurtenance, un- 
justly torn away from the crown of Denmark in troublous tinu's,"we 
certainly admit that the latter words do not allude to the divisions 
of the duchy of Sleswic, but maintain that they refer above all to 
the abolition of feudality, as has already been observed on a 
former occasion (^vidc p. 43). It was formerly a very com- 
mon expression that Sleswic was a feoff of the crown of Den- 

8 



62 



tainly of opinion that the words, " to incorporate with 
the crown,'' have not been used in the formulary of 
the oath of allegiance without some particular mean- 
ing. They convey rather more than the correspond- 
ing passage of the patent ; for there, as we have seen, 
the incorporation related only to the duchy of Sleswic, 
and more especially to the royal portion of it; whereas 
here it is the whole of the dominions, governed by the 
King, with which the country is said to be incorpo- 
rated. But, at the same time, it is as clearly and 
distinctly expressed as possible with what particular 
part the closer political union was to take place, viz., 
with the hitherto royal portion. Thus everything is 
in perfect agreement with the demands of the law, and 
the historical relations of the time. But an incorpo- 
ration with the kingdom of Denmark is quite out of 
the question. 

mark. Besides, the endeavours of the Dukes of Gottorp to sepa- 
rate their part of the country from the royal portion, may here 
have been alluded to. But should it be supposed, that, because 
the kingdom had received an injury, through the abolition of feu- 
dality, the advantage must now ha/e been equally on its side, this 
does not by any means follow. For, in the first instance, incorpo- 
rating the country with the kingdom, would have been a different 
thing from restoring its feudal dependence. In the second instance, 
the supreme feudal power was pre-eminently a right of the sove- 
reign, and, according to the political views of the time, it could not 
but be considered as a sufficient compensation if the sovereign now, 
though in another quality, required the complete possession of the 
country. He had lost one right and had gained another, and in 
referring to this he used in both cases, without hesitation, the word 
croim. In as far as the royal portion itself was, before this, consi- 
dered as belonging to the crown, the Gottorp portion was, indeed, 
when separated, " torn away" from it, for which the present union 
was a full and complete satisfaction. 



63 



In viewing the case as we do, we get rid of all those 
doubts and inconsistencies in which the committee 
has become entangled, and from which it is in vain 
endeavouring to extricate itself. In one place it says,* 
that the whole duchy of Sleswic was incorporated 
into the kingdom of Denmark;" in another, that 
" with regard to other public affairs of Sleswic, tlie 
intended incorporation was not carried into execu- 
tion. But by these " other public affairs" must be 
meant, according to the view of the committee, every 
thing, except the succession. It sayg,;}: " the effect of 
the incorporation was, therefore, limited to the duchy 
of Sleswic being thereby subjected to the Danish law 
of succession," and adds, " and to a sole and sovereign 
government, with the legal and historical conse- 
quences, resulting therefrom.'^ The latter words are 
such as the committee appears to be rather fond of ; 
they seem to include much, though, in reality, they 
contain nothing. As for a sole and sovereign govern- 
ment, it did not require an incorporation with the 
kingdom of Denmark, to establish it ; for the duke 
was already sovereign since the abolition of the feudal 
system, in the year 1658, and the sole lord of the 
country he became as soon as the Duke of Gottorp 
was excluded. For that very reason he called himself 
so already, in the year 1684, when, according to the 
remarks of the committee, no incorporation took place. 
In the same year too, King Christian V. already con- 
firmed the privileges for the duchy of Sleswic by 

* Commissionsbcdcnkcn, p. 7. 
t Ibid. p. 12. 
1 Ibid. p. LI. 



64 



themselves, which separate confirmation cannot, 
therefore, as the committee supposes, have been a 
consequence of the events of 1721, at least only in as 
far as the same thing happened again in this year, 
which had happened once before, in 1684, viz., an 
union of both portions under one sovereign govern- 
ment, whilst Holstein remained a divided feoff of the 
German empire. It is of still less importance that 
Frederic IV. did not grant the clergy and nobility of 
Sleswic a renewed acknowledgment of the privileges, 
as they desired, since he had once confirmed them in 
the usual way, and nothing had happened, which 
made such a deviation from the general rule neces- 
sary. Whatever the committee has said on this sub- 
ject must be considered as totally indifferent. 

The only effect, therefore, which the supposed in- 
corporation could have had, is that of altering the suc- 
cession. But it is difficult to conceive how an act of 
only this effect can be called an incorporation. 

To the nature of an incorporation belongs, at least, 
that the incorporated territory should become part and 
parcel of that with which it was incorporated. Thus 
the territories of Stormarn and Ditmarschen, which have 
been incorporated with Holstein, have become decidedly 
part of the duchy ; but Sleswic, as the committee it- 
self allows,* is not, strictly speaking, part of the king- 
dom of Denmark. In like manner, the committee 
appears to be entirely of opinion that the authority of 
the royal law, as such, does not extend to Sleswic ; 
than which nothing, indeed, is easier to prove. The 
well-known answer of Christian VL to the clergy and 



* Commissionsbedenken, p. 12. 



65 



nobility of Sleswic, that if he should find circumstances 
of such a nature as to require a convocation of the 
states of the duchies, he would make known his reso- 
lution,* sufiices to remove any idea of the absolute 
power (JEnevold-hei'skab) of the royal law having, at 
that time, been established in Sleswic ; from which it 
is to be inferred that an incorporation with the king- 
dom of Deumark has not taken place. For the royal 
law being the established law of the kingdom, it does 
not admit of any doubt, t that every country acquired 
by the king as king of Denmark, and incorporated 
with the kingdom, must be subjected to the same. 

Having, therefore, in a former chapter endeavoured 
to prove, that it was not the intention of the king to 
incorporate the hitherto Gottorp portion of Sleswic 
with the kingdom of Denmark, we shall now have 
shown yet more clearly and explicitly, that such an 
incorporation did not take place. In the patent it was 
not quite distinctly expressed, with what country the 
incorporation was to be effected, though it was hardly 
possible to imagine any other than the royal portion ; 
in the formulary of the oath of allegiance, those who 
took the oath were made to say, that the ducal por- 
tion was incorporate!! with the crown, i. e., with the 
whole of the dominions under the king's government. 
Within these limits it was united to the royal portion 
of Sleswic, not with the kingdom of Denmark. Only 
the affiiirs of that part of the country, not those of the 
kingdom, as we have seen, and as the committer al- 

* Vide Fulck, das lltrzogtlium Sclileswig, p. 92. 

t Fi^/c particularly the \\)\\\ paragra|)li of the roj'al law. 

F 



66 



lows, devolved upon the newly acquired territory. It 
must, therefore, appear in the highest degree proba- 
ble, that what took place in all other respects, did also 
happen with regard to the succession ; that is to say, 
that the order of succession of the royal portion of 
Sleswic was now established throughout the duchy, 
but not that of the foreign kingdom of Denmark. This 
important question remains still to be examined. 

Particular stress has at all times, and now again by 
the committee, been laid on the formula secundum 
tenor em legis regiae,'^ occurring in the oath ; the lex 
regia being considered as the Danish royal law, and 
the formula as the solemn pledge, by which those who 
took the oath bound themselves to acknowledge the 
succession of the royal law as the legitimate standard. 

Regarding these assertions, however, we have to make 
the following remarks. If Frederic IV. had really had 
the intention of altering the law of succession in the 
duchy of Sleswic in the year 1721, this would, evi- 
dently, have been such an essential transformation 
of pubhc affairs, that he ought clearly to have ex- 
pressed his mind on the subject. But the patent, as 
we have seen, makes no mention of an alteration of 
the succession ; it does not even allude to it. The 
same may be said of the formulary of the oath, unless, 
indeed, this alteration be contained in the formula 

secundem tenorem legis regiae.'' But it ill accords 
with this supposition, that neither the patent nor the 
formulary of the oath, mentions an intended alteration 
of the oath of allegiance, and the signification which 
was to be attributed to this alteration. On the con- 
trary, the formulary denotes the oath of allegiance as 



67 



the usual " oath, i. e., as that which those who did 
homao-e were accustomed to take. If therefore, after 
the words hereditary successors in the government,'' 
the abovementioned clause is introduced, which is not 
to be found in the oaths of allegiance, which were 
taken on former occasions, chiefly in the year 1684,* 
it cannot, evidently, have such a meaning as would 
chano-e the oath from an usual into an unusual one ; 
least of all is it to be imagined, that the said words 
were intended to alter not only the usual homage, but 
the law of succession itself. 

It certainly remains doubtful what was meant by 
lex rcgia, in the clause in question. Perhaps it was 
to denote the statute of succession of 1650 ; but it is 
just as likely, that it referred to the patent of the 22d 
August 1721. Important reasons have been advanced 

* This oath, which the committee does not communicate, ran 
thus (for the inhabitants of the town of Sleswic) : We the under- 
signed inhabitants of the town of Sleswic, Lollfuss, and Friedrichs- 
berg, make known hereby : whereas, his royal Majesty of Den- 
mark, Norway, etc., our most gracious king and lord, has, by vir- 
tue of a patent issued at Rendsburgh, under date the 30th May. 
been pleased to take possession of the ducal portion of the duchy 
of Sleswic, heretofore possessed by his Highness the Duke Chris- 
tian Albert, and to unite it with his own ; we do hereby, and by 
virtue of these presents, promise and vow, that we will acknow- 
ledge and consider his royal Majesty of Denmark, Norway, etc., as 
our sole and sovereign lord, be faithful and obedient to him as well 
as to his lawful hereditary successors in the government, and do 
and render whatever it is the duty of good and loyal subjects to do 
and to render to their sovereign king and lord. So help us (iod 
and his holy word. In witness whereof we have hereunto set our 
hands. Done at Sleswic this 9th day of July in the year of our 
Lord 1684." Vide Ausfiihrlich in der Thcologie und den Kecliti n 
wohlbegiundetes Bedenken Uber zwo Ilauptfragen. 1685. 4. 

I- 2 



08 



in favour of both interpretations.* But though they 
do not, with certainty, lead to any decision, yet they 
are, at all events, greatly to be preferred to that ex- 
planation according to which the lex regia denotes the 
Danish royal law. For if it was to be the usual ho- 
mage, as the oath declares, such an alteration as the 
acknowledgment of the Danish royal law would have 
brought about with regard to the succession, could not 
have been intended. 

Notwithstanding all this, it is, however, possible, 
that the king or his counsellors, who composed the 
formulary of the oath, did really intend the lex regia 
for the Danish royal law, believing that the addition 
of such a formula, might, in .some way or other, be of 
importance with regard to the durability of the do- 
minion of the king and his heirs in the whole duchy 
of Sleswic. But surely those who took the oath, could 
not understand it in this sense. For although the 
royal law had, at the command of King Frederic IV., 
been published in the year 1709, and since been com- 
municated to the German public by means of a Ger- 
man and Latin translation, yet there was nothing, on 
the present occasion, to direct the attention more par- 
ticularly to the order of succession of this law ; so 
much the less, as in the royal portion of Holstein and 
Sleswic another statute of succession was established, 
which neither had been, nor was then about to be, 
abolished; which had the same King Frederic III. 
for its author ; and according to the tenor of which, 
previously agreed upon with the states in the year 

* Vide Samwer Staatserbfolge, p. 15, and Neues Staatsburger- 
lices Magazin. Vol. ix. p. 254. 



G9 



1616, the common as well as the royal subjects had 
hitherto done homage. If the intention and will of 
the king, which those who did homage were to be 
more particularly informed of, had been to this pur- 
pose, it ought to have been clearly pronounced. But 
that this has been done in any way, either verbally 
or in writing, is neither reported by the committee 
nor elsewhere. The well-known detail of the homage,* 
contained in several copies of the documents relating 
10 the diet, mentions nothing of the kind ; nor have 
we been able to discover any such thing in any of the 
other accounts, which are to be found in contemporary 
writings. On the contrary, the report of the Sleswic 
iiomage fully confirms, that the clergy and nobility of 
the duchy had no idea that they were required to ac- 
knowledge another law of succession. The oath of 
allegiance being read and the summons given to sign 
it. Count Detlev Reventlau answered for himself and 
in the name of the Sleswic nobility, that " they had 
assembled most loyally to fulfil the wish of his royal 
Majesty, and that tney were ready to render him their 
entire faith, zeal, and devotion, as their sole and sove- 
leign lord." What can be more ex})licit? No re- 
ference is made to any alteration in the succession. 
The words ' secundum tenorem leyls reyiae' must, 
therefore, at least by those who took the oath, have 
been differently understood from what the committee 
supposes ; and if Frederic IV., in composing the for- 
mulary of the oath of allegiance, had really had any 
secret intention, which lie did not tliink pro[)cr clearly 
and unequivocally to pronounce — a supposition which 



* l ida Falc/Cf das llcrzugtlium ISclilc'S'.\ i^j, p. b?. 



70 



we do not, however, consider ourselves justified in 
adopting — this could have had no legal effect what- 
ever. It would, indeed, be a strange way of proceed- 
ing, to explain the words of the oath of allegiance only 
according to the view of him to whom the oath was 
rendered ; it is, on the contrary, in explaining the 
formulary of the oath, indispensable to view it chiefly 
from the situation of those who took the oath ; and to 
inquire, above all, into the well-founded opinion of 
those who w^ere to bind themselves through it. But 
to all appearance, those who took the oath could not 
possibly be of opinion that they were required to ac- 
knowledge a new law of succession, of which no men- 
tion was made in the patent, and which, to say the 
least of it, was in the formulary of the oath itself, 
very equivocally and indistinctly expressed. 

We have been obliged, in our inquiry, to distin- 
guish between the patent of the '22d August 1721 and 
the oath of allegiance, which was taken on the 3d and 
4th September. From the former we had to learn 
the intention of the king, from the latter the realiza- 
tion of this intention. It is certainly remarkable, that 
they do not quite agree with one another. In the 
patent the king speaks only of an incorporation with 
the royal portion of the duchy, instead of which he has 
used in the formulary of the oath, the word crown, 
which is of a far more extensive signification ; in the 
former he merely proclaims, that he desires to receive 
homage as the sole sovereign lord of the country ; in 
the latter he has added, the royal successors in the 
government secundum tenorem legis regiae.'' The first 
alteration has not led to any essentially diflferent 
result ; what the king thought to attain by the latter 



71 



addition, must remain undecided. That it was to 
brino; about more than had been the declared inten- 
tion of the king, is not probable. That in such a man- 
ner the succession of the royal law cannot have been 
established in the duchy of Sleswic, is perfectly clear. 

VIII. — We now proceed to answer the third ques- 
tion, which the committee has passed over in complete 
silence, concerning the legality of what King Frederic 
IV. really executed of his intentions towards the duchy 
of Sleswic. Having hitherto arrived at the result, 
that neither an incorporation of the whole duchy 
with the kingdom of Denmark, nor the establishment 
of the succession of the royal law in the duchy of 
Sleswic, was either intended or realized, we might, 
jndeed, save ourselves the trouble of answering this 
third question. For the asserted facts having never 
taken place, at least not been proved, it would appear 
superfluous to inquire into their legal effect. But we 
will put the case, though we do not admit it, that the 
events of the year 1721 happened, in the main, as the 
committee conceives and represents them ; we will 
more especially suppose, that the lex regia was, accord- 
ing to the meaning of the king, really intended for the 
royal law ; and ask, what would, in that case, have 
been legally effected thereby? Would the supposed 
event have been able to bring about an alteration in 
the public law of the duchy of Sleswic ? And above 
all, would the agnati, who were then the lawful heirs, 
have been deprived thereby of their well-established 
right of succession ? We confidently give a ncgaiive 
answer to these cjuestions. 

We have first to inquire, whether Frederic IV. had 



72 



at all a right to dispose at will of the conquered por- 
tion of the duchy of Sleswic ? The committee finds 
his right of doing so in the right of war.* Against 
this, it is to be observed, that the king could not, of 
course, have any right of war with regard to the royal 
portion of the duchy ; nor could the joint portion be 
considered as a conquered territory, because it was 
already under the joint government of the king. 
Moreover, we do not find in any of the documents 
now extant, a single passage in which King Frederic 
himself appealed to the right of war. On the contrary, 
he has expressly declared that, ^' the taking posses- 
sion of the ducal districts, boroughs, and towns, which 
had become necessary for the security of his domi- 
nions," was not to be considered as SiyL hostile inva- 
sion.f 

But independent of this, it must altogether be de- 
nied that, according to the existing treaties, a regular 
war with all its consequences, as sanctioned by the law 
of nations, could be entered upon between the reigning 
lords of the duchies. The committee, to be sure, re- 
presents the case thus, as if Denmark had engaged in 
war with the Duke of Gottorp, and as if Denmark had 
conquered the territory of the duke. But this is either 
a great inaccuracy of expression, or an erroneous as- 
sertion. For if anything can with certainty be ascer- 
tained from authentic documents, it is, that the king 
w|is, as Duke of Sleswic and Holstein, at variance with 
the Duke of Gottorp, and that he had, as duke, taken 
possession of the Gottorp portion of the country. All 

Commissionsbedenken, p. 1^3. 
t Patent of the king, of the 31st July 1714. 



73 



subjects of contest between them — the right of arms of 
the duke, his alliance with the Swedes, his surrender- 
ing the fortress to the Swedish general Steenbock — 
were chiefly viewed with reference to the duchies and 
their public law ; the duke had erred as the partici- 
pator in the Government, as the ally, bound by the 
treaties of union. It is this, the patent of the occu- 
pation, as well as that of the homage alludes to. But 
this view of the case is still more confirmed bv the 
transactions, which were then carried on at the diet 
of Ratisbon. In the bill of complaint^' of the Duke 
of Gottorp, and in the decrees of the diet itself, it is 
expressly mentioned, that the king had acted as 
Duke of Holstein-Gliickstadt ;'f and his Holstein- 
Gliickstadt ambassador entered into this transaction. 
The kingdom of Denmark had no immediate con- 
cern with these measures. 

It is, however, perfectly indifferent, whether the 
King of Denmark or the royal Duke of Sleswic, be 
considered as the warfaring party ; for in neither case 
was a war constitutionally permitted. It might, of 
course, happen that one party gave some offence to the 
other, and affairs might take sucli a turn, that the 
offended party might consider itself justified, accord- 
ing to the principles of self-defence, in taking up arms, 
which might even lead to the expulsion of the offen- 
der ; but such differences did not, according to tlic 

* Fahery XXII., p. 284—288. 

t For instance, in the decree of tlie diet of the 25th rebruary 
1714 (Faber, XXIII., p. 244) we find the follovv ing words, ' regard- 
ing the dominions and rights of tlie duke of Slcswic-Iiolstein-Got- 
torp occupied by his royal Majesty of Denmark, as duke of IIol- 
stein-Gluckstadt." 



74 



existing treaties of union, constitute a regular war, 
nor did they give to either party a right of conquest. 
The proceedings which were to take place in such 
cases, were very different from those resorted to in 
regular wars, and subsequent conquests, sanctioned by 
the law of nations. According to what has been re- 
marked before (p. 9,) the differences with Denmark 
should be adjusted or removed by the arbiters of the 
union, and those between the dukes by amicable ar- 
rangement, or through the intervention of a third par- 
ty, chosen for that purpose. The way, therefore, in 
which King Frederic IV. had to proceed, was indicated 
by the constitution of the country, and by the treaties 
between the reigning princes, instead of proceeding 
by the way of conquest, and afterwards disposing of 
the conquered territory. 

But, even supposing the case that Frederic IV. had 
carried on a regular legitimate war with the Duke of 
Gottorp — perhaps he really thought so himself^— yet 
it has long since been an acknowledged principle 
of the European law of nations that a conquest alters 
only the existing state of possession. The conqueror 
becomes only provisional possessor of the conquered 

* The king, at least, caused to be declared at the diet of Ratisbon, 
the 5th May, 1713, that "he could not but consider and look upon 
the duke as his avowed «nemy." His words are as follows : " We 
find ourselves obliged to treat the country of the Duke of Gottorp 
in a hostile manner, and to deal with the administrator and his pupil 
as is customary with an open enemy." Vide Faber, XXII. p. 254. 
But this declaration proves again that the king entered into hostili- 
ties as Duke of Sleswic and Holstein, for oUierwise he would, doubt- 
less, not have thus announced it to the German diet through his 
Holstein-Gluckstadt ambassador. 



7o 



country ; no rights are as yet acquired, with regard to 
the expelled sovereign, by the mere conquest ; no 
rights are lost by it for the latter.* The loss of the 
rights, which have hitherto belonged to the expelled 
sovereign, ensues only from the formal cession of the 
country at the conclusion of the peace. But no peace 
had as yet been concluded with the Duke of Gottorp 
in the year 1721 ; it was almost half a century later 
when that peace was established which changed the 
mere possession of the occupied ducal territory into an 
actual right for the royal line. According to the prin- 
ciples of the law of nations, therefore, Frederic IV. 
could not, at that time, consider the claim of the house 
of Gottorp on the duchy of Sleswic as extinct. 

The sequel has sufficiently proved the accuracy of 
these principles, for if Frederic IV. had already in 
1721 acquired an actual right to the occupied territory 
of the duke, how could his successors, then, have been 
engaged at a later period in causing the rights of the 
house of Gottorp to be transferred to themselves ? The 
negociations of the year 1750 with the younger line of 
the house of Gottorp which had been raised to the throne 
of Sweden, and those of the year 1767 with the other 
branches of the same house, clearly prove that the 
events of 1721 were legally considered as having never 
occurred.! 

It is, tlierefore, self-evident that the right of succes- 

* MartenSy Volkerrecht, s. 280. Kl'dhcr, Volkerrecht, s. 255 
Saalfcld^ Ilandbuch des positiven Volkerrechts, p. 220. 

t The act of renunciation of the (irand-Uuke Paul, communi- 
cated in the report of the committee (p. 1'3) contains the following 
words: "The hitherto ducal portion of the duchy of Sleswic, octv/~ 
pied by the crown of Denmark. ' 



76 



sion cannot, as the committee supposes, have become 
extinct by conquest. 

We will, however, admit that the provisional pos- 
session of the Gottorp portion of the duchy of Sleswic, 
acknowledged by the powers of Europe, in a manner 
obliged and entitled the now only duke to adopt those 
measures which he took in the year 1721, that is to say, 
to receive homage as the sole and sovereign lord of the 
country. But it did, at all events, not entitle him to 
bring the whole duchy of Sleswic, or even the ducal 
portion thereof, into any closer connexion with the 
kingdom of Denmark than it had been before. It was 
only the duke of Gottorp with whom he had been 
contending, and whom he had accused of having ne- 
glected those duties which he owed to the king as 
co-reigning duke; v^'ith his ow^n portion of the country, 
or with the common subjects, the king had had no 
dissension whatever, much less carried on a regular 
war ; for neither the patent of the occupation, nor that 
of the homage, mentions anything of the kind. The 
contents of these two documents is simply that the 
duke should lose his rights, and that the subjects 
should render to the king whatever they had hitherto 
rendered to the former. Therefore, it is clear that 
only the rights of the duke devolved upon the king, 
and that the latter, having no right to alter the royal 
portion at all, was, even with regard to the Gottorp 
portion, only allowed to do as much as was requisite 
for the purpose of putting himself in the duke's place, 
and, consequently, becoming the sovereign lord of the 
whole instead of half the country. " To make any alter- 
ation in the political constitution of the country, as by 
law established in favour of the kingdom of Denmark, 



was out of the question. It is more especialh^ to be 
borne in mind that the king could not dissolve the 
connexion of the dachy of Sleswic with Holstein, with 
which it formed one political whole, or as it was called 
in the language of the time a corpus integrale. The 
duke succeeded to both duchies by the same title, ac- 
cording to the principles of primogeniture in the male 
line, and the two countries were, notwithstanding tlieir 
different position in other respects, most closely and 
inseparately united by having the same sovereign, the 
same diet, and various other affairs in common. The 
king had acknowledged this not only by confirming 
the privileges, but even by entering upon the govern- 
ment itself, for he did so only by virtue of this very 
title. He could not alter and abolish this. But he 
would have abolished it completely by incorporating 
the duchy of Sleswic with the kingdom of Denmark. 
Had he, therefore, attempted to do so, which he has 
not, the attempt would, for that very reason, have been 
without any legal effect whatever. For the same rea- 
son it would have been equally impossible to introduce 
here a different order of succession from that estab- 
lished in the duchy of Holstein. This might sooner 
or later lead to a complete separation of the two coun- 
tries, which the king had only a short time before 
repeatedly declared to be unlawful. The first king of 
the house of Oldenburgh had chiefly been elected, 
that the countries migljt remain together; how could, 
then, one of his successors be allowed to abolisli this 
union which had been preserved during all tljc former 
divisions ? 

But we will go yet a step further in our concessions, 
by sujjposing that it was not absolutely iuipostible for 



78 



the king to alter the law of succession of the duchy 
of Sleswic with the consent of the country, and, taking 
it for granted that it was the intention of the king, by 
the measures he took in the year 1721, to establish 
the succession of the royal law, and to exclude the 
male line in favour of the royal female line. Still we 
must say that these measures were by no means calcu- 
lated to lead to the desired end. According to the 
opinion of the committee,^ the acknowledgment of the 
succession of the royal law for the duchy of Sleswic 
was duly effected through the oath of allegiance, taken 
on the 3rd September, 1721, by the dukes of Augus- 
tenburgh and Gliicksburgh, and the following day by 
the clergy and nobility of the duchy of Sleswic. But 
here again it is to be remembered that the royal por- 
tion of the duchy of Sleswic had, at all events, nothing 
to do with this acknowledgment, since the homage was 
altogether confined to the joint portion and to the 
private portion of the Duke of Gottorp. Besides this, 
the following circumstances ought to be taken into 
consideration : The dukes of Gliicksburgh and Augus- 
tenburgh took the oath of allegiance only in the quality 
of great landed proprietors, and the committee itself 
expressly owns that the oath was not to be a renuncia- 
tion of any feudal right of succession. f The oath of 
the two dukes had, therefore, no other signification 
than that of the other landed proprietors. Even if it 
were certain (which it is not) that Frederic IV. wanted 
to cause the succession of the royal law to be acknow- 
ledged by the landed proprietors in the duchy of 

* Commissionsbedenkeii, pp. 10, 17, and 18. 
f Commissionsbedenken, p. 17. 



79 



Slesvvic and by the subjects in the Gottorp districts, 
what would have been legally effected thereby ? Would 
the other male branches of the house of Oldenburgh 
have lost their agnatic right of succession ? Certainly 
not. In the treaty of Odensee, of 1579, the feudal right 
of succession of all the present and future agnati to the 
duchy of Sleswic was acknowledged, with the only ex- 
ception of those who had expressly renounced their right 
by a special agreement. Through the oath of allegiance 
the dukes of Sonderburgh and Gliicksburgh had, ac- 
cording to the committee's own statement, no idea of 
renouncing their feudal right of succession, nor were 
they expected to do this ; consequently, they have not 
renounced. It would be superfluous to say any more 
upon this subject, as the continued validity of the 
feudal right of succession is so self-evident. But the 
opinion which the committee appears to entertain, that 
the homage contained at least a renunciation in favour 
of the female descendants of King Frederic IV. is in 
direct opposition to the above. If the feudal right of 
succession is still in force, then the female succession 
of the royal law, which is so totally different, can have 
no effect. Nor could it in any way have contributed 
towards abolishing the former and establishing the 
latter in its stead, if even a few members of that house 
which was entitled to succeed, had done homage to 
the royal successors according to the IccV reyia. For 
<mly such have done so who were at the same time 
great landed proprietors; a sure proof that in this 
quality alone the oath was both demanded and taken, 
and that on neither side it was considered as a renun- 
ciation.* 

* Vide Michelsen, (Erste) polemischc, Erortcrung, p. IS. 

7 



80 



Much less could the rights of the agnati have heen 
affected by the supposed acknowledgment of the 
succession of the royal law on the part of the other 
persons, who were summoned to do homage. Whether 
they were, according to a perfectly unfounded suppo- 
sition, considered as representatives of the states of 
the whole duchy, or as individual subjects of the ex- 
pelled sovereign ; in neither case were they entitled 
to renounce the right of succession, appertaining to 
the Duke of Gottorp, or the other agnati of the house 
of Oldenburgh, or to exclude the male line from the 
succession, and to call in its stead, as the committee 
expresses it, the race of Frederic III., both male and 
female, to the succession in the duchy of Sleswic. 
The committee denotes the homage of the landed pro- 
prietors as a co-operation to this effect. If it was, 
indeed, intended to be such, it was completely null 
and void. 

Independent of its being by no means clearly ascer- 
tained, that those who took the oath had any intention 
of excluding the male branches from the succession, 
or of keeping them at a greater distance in this respect, 
they had certainly no right to do so. However clear 
the intention of Frederick IV., to establish the succes- 
sion of the royal law may appear, however unequi- 
vocally this intention may have been pronounced by 
the king in receiving the homage in the year 1721, 
and understood by those who took the oath ; yet the 
legal result remains the same. The homage done in 
such a manner could neither deprive the agnati of the 
house of Oldenburgh of their well-founded right of 



* Commissionsbedenken, p. 18. 



81 



succession nor confer any right of succession upon 
the female descendants of the royal line. The dif- 
ferent branches of the house of Gottorp have, in 
the sequel, not failed to declare that their rights 
had suffered no diminution throuo-h the homao-e 
of 1721. Moreover, the continued validity of tlie 
Gottorp claim has sufficiently been acknowledged by 
the royal house itself; for by endeavouring, through 
protracted negociations, to effect the renunciation of the 
dukes of Gottorp, and by causing the latter to grant 
it a formal renunciation, it has most unquestionably 
acknowledged that the Sleswic homage of 1721 was, 
with regard to the Gottorp right of possession and 
succession, an act, utterly void of any legal conse- 
quence whatever. 

The inefficacy of the Sleswic homage of 172 J, with 
regard to the right of succession of the Sonderburgh 
line, has (it would almost appear unconsciously,) been 
acknowledged even by the committee, in its state- 
ments on the feudal affairs of the Sonderburgh line.* 
For it remarks that the descendants of the Duke John 
the younger, had, on account of their joint claim on 
the duchy of Sleswic and the country of Fehmarn, 
even after the year 1721, continued to sue for an in- 
vestiture, and that sucli a suit had been presented so 
late as 1767. Though for a lone: time no investiture 
had taken place in consequence thereof, yet certifi- 
cates had been given of the suits having been duly 
presented. 'i'hesc certificates, as for instance the 
royal reply to the suit of 1767, had contained tiu,' 
assurance, that tiie rights of the line should be se- 
cured through the suit. The couimittec^ relates these 

* Coniinissionsbctli'iikc II. p. I S. 

G 



82 



facts as unconcernedly as if they were of no consequence 
whatever, though it is perfectly clear and does not 
admit of the least doubt, that they are of the greatest 
importance. For each certiticate of that kind is an 
acknowledgment of the feudal quality of the country, 
and of the feudal right of succession of the party suing 
for an investiture. The feudal rio^ht of succession of 
the Sonderburgh line to the duchy of Sleswic 
having therefore been acknowledged after the year 
1721, it is evident that neither the duchy of Sleswic, 
which, in the above-mentioned respect, continued to 
retain its feudal quality, can have been incorporated 
with the kingdom of Denmark, nor the succession of 
the royal law been established in the former. For a 
country cannot at the same time be incorporated with 
another, and still be considered as a feoff of the same. 
We will only add the remark, that if the vassal or the 
person entitled to be invested with a joint claim, has, 
at the proper time, sued for the investiture, he has 
done all that he is obliged to do. If a satisfactory cer- 
tificate of the suit has been given^ the investiture itself 
is for the vassal, or for the possessor of a joint claim, 
a matter of perfect indifference. In former times, the 
investiture was for the feoffer, the condition of his 
feudal rights ; on that occasion he received the oath 
allegiance, by which he acquired all the rights 
to be derived for him from the feudal faith of the 
feoffee. In more modern times, if a certificate, of 
the investiture having been sued for, has previ- 
ously been given, the latter has hardly any legal 
signification whatever, and is, in" such case, only to be 
considered as a solemn festival or ceremony, in honour 
of the feudal lord, which he may of course disclaim if 
he pleases. The essential part of the renewal of the 



83 



feudal rights is, therefore, in the giving the above- 
mentioned certificate. If the suits of the Dukes of 
Souderburo^h for an investiture were onlv followed by 
the answer, that the rights of the line with regard to 
the joint claim on the duchy of Sleswic should be 
secured, such a declaration could not but be consi- 
dered as perfectly satisfactory. As for the investiture 
with a joint claim itself, we refer to the remarks 
which have been made relating thereto, from p. 17 to 19. 

IX.— We have hitherto endeavoured to prove that the 
events of 1713 and 1721 could not have been intended 
to alter the law of succession of the duchy of Sleswic, 
and that even if they had been intended to do so, this 
intention was not carried into effect. It has, moreover, 
been shown that what took place was litte calculated 
legally to establish such an alteration. The only pur- 
pose of these events was, on the contrary, that of ex- 
cluding the Gottorp line from the joint possession of 
the duchy of Sleswic, and of securing the sole posses- 
sion thereof to the royal line. This was, however, 
only a provisional state of affairs, as long as the house 
of Gottorp had not formally acknowledged it. Thus, 
as we have already shewn, the case was viewed by the 
royal line itself; and even the committee appears 
(though rather inconsistently,) to have considered it 
in the same light, in denoting the hereditary Grand- 
duke of Russia, as the person actually entitled to tlie 
possession, in 1773.* 

Under such circumstances, it became necessary for 
the royal line to consider the legal means by which 
this provisional state of afl'airs might be rendered |)er- 

* Commissionsbedenkcn, I -4 and I."). 

G 2 



84 



manent ; more especially since the house of Gottorp 
appeared to have acquired the power of making good its 
claim, by the Duke Charles Peter Ulric having been 
called, in 1742, to the throne of Russia, and the Duke 
Adolphus Frederic, in 1743, to that of Sweden. We 
find, therefore, the royal line immediately afterwards, 
commencing negociations to that effect, which, after 
several interruptions and fruitless attempts, led to the 
desired result, viz., with the Swedish line of the house 
of Gottorp, through the definitive treaty of the 25th 
April 1750, and with the Russian line, through the 
provisional treaty of the 22nd April, 1767, and the 
definitive treaty of the 1st June, 1773, and through 
the acts of acknowledgment on the part of the Prince- 
bishop of Eutin, of 1767, and of the 13th of Novem- 
ber, 1773. The purport of these treaties being, there- 
fore, legally to sanction the state of affairs brought 
about by the events of 1721, it is in itself not very 
likely that they should have contained something 
different from, or even more than this. 

The report of the committee, however, attributes to 
the treaties of 1767 and 1773, concluded with the 
Russian line of the house of Gottorp, another signifi- 
cation, which we shall now proceed to examine more 
closely. The passage relating to this is as follows : — * 
" The acquisition of the Gottorp portion of Sleswic, 
which had been made jure belli, and guaranteed by 
England and France, and which (the Gottorp right 
of succession with regard to the royal portion being 
likewise by right of war, considered as extinct,) had, 
in 1721, led to the establishment of the succession of 
the royal law in the duchy of Sleswic, was sanc- 

* Commissionsbedenken, p. 13. 



85 



tioned to this extent in 1767 and ]773, by the illustri- 
ous house of Gottorp, for ever renouncing all its 
claims on the duchy of Sleswic, in favour of the 
crown of Denmark." 

With regard to this view of the case we have first 
to remark that the Gottorp portion, as has more fully 
been shown in the preceding chapter, could not be 
acquired by means of war, but only by a treaty of 
peace ; secondly, that the eventual right of succession 
of the house of Gottorp to the whole duchy of 
Sleswic could, much less, be lost in consequence of 
the war ; and thirdly, that the right of succession 
of the younger royal line could, least of all, be 
affected by the said events : a subject to which we 
shall presently be obliged to return. The only ques- 
tion therefore is, what legal effect had the treaties, 
which were afterwards concluded between the royal 
and the Gottorp line ? 

Till the conclusion of these treaties, the house of 
Gottorp had a two-fold claim on the duchy of Sles- 
wic ; first, an eventual right of succession to the 
whole duchy, founded on the act of election of 1460, 
and the descent of the Gottorp line from Christian 1.; 
secondly, a claim on the actual |)ossession of a part of 
the duchy, and on the participation in the government 
of the same, founded on the descent of the Gottoi p 
line, from Duke Adolphus, who had been accepted by 
the states, in 1533 and 1544, as participator in the 
government of the duchies. 

That only the latter claim has been renounced, is 
clearly expressed in the treaty conclu(h;d with the 
Swedish line, in 1750, as well as in the acts ol" ac- 
knowledgment of the Prince-bishop of Llntin. Only 
with icgaidtu the Grand-dukc of Kussia, it may be 



86 



doubted, whether he did not intend through his act 
of renunciation of 1773, to resign the eventual right 
of succession to the whole duchy of Sleswic like- 
wise. 

On the one hand, it is to be observed, that the preli- 
minary treaty of 1767 makes no mention of this even- 
tual right of succession, but denotes the ducal portion 
of the duchy of Sleswic, occupied by the crown of Den- 
mark, as the subject of negociation, and promises a 
complete renunciation of this portion, as required by 
the king of Denmark, referring to a draught of 
a formal act of renunciation, which was annexed 
to the preliminary treaty, but has not been pub- 
lished In the definitive treaty of 1773 this act of 
renuciation was ratified by the Grand-duke Paul, 
without any further statement of its contents. 

Taking into consideration, that a renunciation of 
the ducal portion of the duchy of Sleswic was all 
that had been required in the preliminary treaty, and 
that the grand-duke cannot, reasonably, be supposed 
to have done more in the year 1773, than he had pro- 
mised to do in 1767; moreover, that the act of ac- 
knowledgment of the Prince-bishop of Eutin,* which 
was subjoined to the preliminary treaty, and accord- 
ing to its own statement, intended to contain the same 
renunciation as that of the Grand-duke Paul, unques- 
tionably refers only to the actual right of possession of 
the house of Gottorp with regard to the duchy of 
Sleswic ; and lastly, that the purpose of all these ne- 
gociations, as we have seen, was legally to sanction 
the state of affairs, which had been brought about by 
the events of 1713 and 1721 ; — we feel naturally in- 
clined to suppose that the grand duke intended only 
* Fide Samwer, Staatserbfolge, p. 01. 



87 



to renounce the last-mentioned claim, that is to say, 
that the eventual right of succession was reserved. 

On the other hand it is to be considered that the 
act of renunciation on the part of the grand-duke, 
which formed the basis of the negociations concerning 
the preliminary treaty, and which was expressly rati- 
fied in the definitive treaty, must decidedly be looked 
upon as the chief document. Even in this, it is true, 
tbe eventual right of succession to the duchy of Sles- 
wic is not exactly mentioned ; yet the rights which 
the grand-duke therein renounces, are described in 
such general terms,* that it must be owned, they ap- 
pear to include his eventual right of i?uccession like- 
wise. In this case, the Grand-duke Paul and his de- 
scendants would, with regard to the succession to the 
duchy of Sleswic, be considered as not belonging to 
the house of Ohienburgh, (the descendants of Chris- 
tian I.,) and be exactly in the same position as those 
who had already renounced" at the time, when the 
treaty of Odensee was concluded. 

We have, therefore, only to inquire into the eflfect 
produced by the house of Gottorp renouncing its ac- 
tual right of possession concerning the duchy of 
Sleswic. The committee argues on this head in the 
following manner : that the Grand-duke Paul had 
renounced his claims on the duchy of Sleswic in 
favour of the crown of Denmark, and thereby ac- 

* Commissionbedenken, p. 13. — " We do Iiercby and by virtue 
of these presents, intentionally and deliberately renounce and re- 
sign for ourselves, our heirs and descendants, all right of possession 
to the duchy of Sleswic, which we have hitherto had, or which 
may be derived therefrom, likewise all other rights, claims, and 
demands on the said duchy , whatever they may l)e, in the most 
solemn and binding manner," clc. 

b 



88 



knowledged the establishment of the female succession 
in the said duchy; and that this renunciation of the 
Grand-duke Paul must a^so have affected the rights 
of any third person, because, with regard to a con- 
quered territory, the cession and renunciation of the 
person actually entitled to the possession, was, accord- 
ing to the law of nations, sufficient. This person hap- 
pening, in the present case, to be at the same time the 
acknowledged representative of the house of Gottorp, 
there had been no occasion for admitting the Swedish 
line of this house to the treaties of 1767 and 1773. 

The first of these assertions of the committee, that 
the grand-duke had renounced his claims in favour of 
the crown of Denmark,* must be contradicted altoge- 
ther; for not a word is to be found in the act of 
renunciation to that effect. It contains, on the con- 
trary, after the introductory part, only a complete but 
simple renunciation, without transferring the re- 
nounced rights to any one else ; then proceeds to 
describe from the words, "it is, therefore, our will," 
the effect of this renunciation, viz., that his royal 
majesty of Denmark, Norway, &c., and his heirs to 
the crown, shall remain in undisturbed and quiet pos- 
session of the duchy of Sleswic, without any interfer- 
ence ; and, lastly, states the engagement entered upon 
by the Grand-duke Paul for himself, his heirs, and 
descendants, neither to act themselves contrary to 
this renunciation, nor to permit others to do so. 

Throughout the above deduction of the committee 
there appears the mistake of confusing, or at least 
tacitly identifying, the notions of renunciation and 

* Commissionsbedenken, p. 13. 



89 



cession* wliicli denote two legal acts, essentially 
differino; from each other. Cession is the transfer of 
a right on the part of its former possessor to another; 
renunciation is merely the relinquishment of the same. 
Even where this relinquishment happens to he in favour 
of a certain third person, it does not yet imply an 
actual cession, though, under particular circumstances, 
it may lead to the same result ; which latter circum- 
stance has, probably, not a little contributed towards 
the mistake, in considering a renunciation in favour 
of a third person, and a cession as essentially the same. 
With regard to this mistake, we have to remark that 
whoever acquires a right by cession, receives it imme- 
diately from its former possessor, and the title of his 
new acquisition is transfer ; whoever, on the contrary, 
acquires a right in consequence of the renunciation o^ 
another, receives it certainly through, but not imme- 
diately from, the person renouncing. The renuncia- 
tion only removes the obstacle which, resting in him 
who renounces, has hitherto impeded, as it were, that 
person's own right, who is benefited by the renuncia- 
tion. In order, therefore, to acquire a right through 
the renunciation of another, it is requisite that he in 
whose favour the right is renounced, should already 
have an independent right of his own. This is no- 
where more apparent than in the law of inheritance. 
The renunciation of the next heir in favour of one 
more distant, gives the latter an effectual claim on 
the inheritance only under the supposition of his being 
already entitled to inherit ; whereas, by cession, a 

* l idvy Commissionsbcdcnkcn, |). 11, w litre cession aiul rtiiuii- 
tialion arc iiumccliatcly j)ut tugctlicr. 



90 



right of inheriting may even be transferred to a per- 
son who has not the least claim of his own on the in- 
heritance. We are of opinion that the notions of 
cession and renunciation, so common in private law, 
can also, in public law, have no other signification 
than that explained in the above. But such being 
the case, and the act of renunciation of the Grand- 
duke Paul, as well as the preliminary treaty in ques- 
tion, repeatedly mentioning only a renunciation, 
without saying a word of a cession, it necessarily 
follows that only the effect of the former is to be 
admitted.* 

Nor can the circumstance of its being stated as the 
effect of the renunciation, that his royal majesty of 
Denmark, Norway, &c., and his heirs to the crown, 
shall remain in undisturbed and quiet possession of 
the duchy of Sleswic, be understood in this sense, as 
if it had been intended thereby to transfer the actual 
right of possession of the Grand-duke Paul and his 
descendants to the female descendants of the royal 
line, entitled to succeed in the kingdom, at least for 
the time of the duration of this line ; that is to say, as 
if it had been intended thereby to express not only a 
renunciation, but a cession of the rights of the grand- 

^ The history of our country furnishes several instances of both 
legal acts with their different effects. At the division in 1544, the 
Duke Frederic, the youngest brother, having been elected Coadju- 
tor of Bremen, renounced his share, which had the effect that the 
shares of the other brothers became proportionably larger. But at 
the division, in 1564, King Frederic II. received two-thirds, and 
Duke John the younger only one-third, because the third brother, 
Duke Magnus, had not only renounced his claim, but ceded it to 
King Frederic. 



91 



duke. For had it been the intention to establish a 
real cession, it would have been necessary, according 
to the above explained notion of a cession, clearly 
and distinctly to pronounce this intention in the docu- 
ment; which has, certainly, not been done by merely 
using the expression, " and his heirs to the crown." 
The signification of this expression is by no means so 
extensive as to include all, even the female successors 
to the crown of Denmark. It has already been re- 
marked on a former occasion, and will be referred to 
more at large in the appendix, that such a supposition 
is directly opposed to the manner in which these and 
similar expressions are generally used in the political 
writings of the eighteenth century; according to 
which the heirs to the crown" are those who are 
called to succeed to the several countries belonging 
to the crown, according to their respective laws of 
succession. If, therefore, in these several countries 
belonging to the crown, different laws of succession 
are established, the question with regard to a newly 
acquired territory is, with what country has it been 
united ? and the law of succession established in that 
country shall extend over the newly acquired territory 
likewise. The exj)ression, " heirs to the crown," has the 
same signification as " hereditary successors," which 
is more common still, and which occurs, for instance, 
in the patent of the 30th May, 1684; consequently 
at a time when, certainly, no alteration in the laws 
of succession had taken place. Tiius llildcsheiui and 
East Friesland were consigned to the king of Great 
Britain and his successors, in tiie treaty of the i29th 
May, 1815; yet no one lias ever doubted thut these 
districts were not consigned to the female line, entitled 



92 



to succeed in Great Britain, but to the male line 
which was to succeed in the kingdom of Hanover. A 
similar case happened at the treaty concluded on the 
14th February, 1842, on the part of his majesty the 
king of Denmark, with the Grand-duke of Olden- 
burgh, about the limits of their dominions, and the 
boundary between the duchy of Holstein and the 
principality of Lubec. In the 17th article of this 
treaty the grand-duke promised eventually to surren- 
der a strip of country *'to the crown," although it 
was expressly stated that the regulation of the territo- 
rial limits of the duchy of Holstein was the subject of 
the treaty, and it cannot be doubted that the strip of 
country in question was intended to be surrendered 
to those entitled to the succession in Holstein, but not 
to the hereditary successors in the kingdom of Den- 
mark. So much the more we are obliged here, where 
the renunciation does not concern any foreign terri- 
tory, but only the participation in the government of 
a duchy, forming one undivided whole, to under- 
stand the expression, " heirs to the crown," as meant 
to denote those entitled to succeed in the duchy of 
Sleswic. Should there, however, still remain some 
doubt in this respect, it will, at all events, be removed 
by the consideration that the treaties of 1767 and 
1773 were not concluded with the King of Denmark, 
as such, but only between the two lines of the house 
of Holstein ; that they did not, consequently, concern 
the kingdom of Denmark at all, and cannot, therefore, 
be expected to contain any stipulations in favour of 
tlie same. 

The two first assertions of the committee thus prov- 
ing to be without the least foundation, it will be seen 



93 



that the third, viz., that the renunciation must also 
have affected the rights of any third person, is equally 
groundless. The committee is evidently aware of its 
assertion, that the actual right of possession of the 
house of Gottorp had also been transferred to the 
female descendants of tiie royal line, being refuted 
by the renunciation of the Swedish line of this house 
expressly mentioning only the male descendants of 
the royal line ; from which dilemma it has no other 
way of extricating itself than by boldly maintaining 
that there had been no occasion for admitting the 
Swedish line to the treaties of 1767 and 1773, that, on 
the contrary, '* the act of renunciation of the grand- 
duke was quite sufficient for ever to preclude the 
claim not only of the next heirs and descendants, but 
of any third person likewise." 

The act of renunciation itself contains nothino; 
whatever about the rights of others being thereby in- 
tended to be surrendered ; stating, as before remarked, 
only the engagement entered upon by tlie grand-duke 
for himself and his descendants ; neither to act them- 
selves contrary to the renunciation, nor to permit 
others to do so, that is to say, to undertake anything 
towards re-establishing the grand-duke and his de- 
scendants in their former rights. 

In the preliminary treaty it was deemed indispen- 
sable that the other princes of the male line of the 
house of Holstein-Gottorp should also renounce their 
claims on tiie ducal portion of the duchy of Sieswic ; 
for otherwise it would not have been promised in the 
treaty to persuade these princes to do so! 

We arc here obliged to revert to a subject already 
touched upon in a former (;haj)tor, viz., the ;is:sei tioji 



94 



of the committee, that through the events of the year 
1713 and 1721, and finally, of 1773, the right of sue- 
cession of the Sonderburgh line of the royal house to 
the whole duchy of Sleswic had become extinct. 
Whatever the committee has alleged concerning the 
political affairs of this line, is certainly not able to 
render this right of succession in the least doubtful. 

The treaty relating to the Gliicksburgh succession 
cannot be of any consideration, since it concerned 
only a certain small part of the country, but not the 
right of succession to the whole duchy of Sleswic. 
The erroneous assertions of the committee, that the 
right of succession of the Sonderburgh line was not 
solely derived from its descent, and that the effect of 
the joint investiture had depended on the actual pos- 
session of some feudal estate, and ceased with the loss 
of the same, have already been sufficiently refuted. 
That the Dukes of Sonderburgh have ever expressly 
renounced their claim, the committee does not assert. 
It admits, on the contrary, that the oath of allegiance, 
taken in the year 1721, was not meant to contain a 
renunciation of the feudal right of succession ; more- 
over, that the right of succession to the whole duchy 
had still continued to be acknowledged till the year 
1767. What, then, has since caused the loss of this 
right? The committee almost appears to believe that 
it was occasioned by the different branches of the 
ducal house of Sonderburgh not having taken care to 
secure their eventual right of succession, when the 
house of Gottorp was renouncing its claim on Sleswic 
by the treaties of 1767 and 1773." But what should 
have induced them to take this precaution? Accord- 
ing to well-known principles of law, the house of 



95 



Gottorp could only surrender its own rights, but was 
by no means entitled to dispose of the rights of the 
house of Sonderburgh. There is not the least reason 
to suppose that the house of Gottorp was either igno- 
rant or doubtful of the eventual right of succession of 
the different branches of the house of SonderburQ-h, 
and that it had any idea of enacting anything respect- 
ing their right of succession, or of altering it in any way 
whatever. The treaties which were concluded con- 
cerning the duchy of Sleswic contained nothing the 
house of Sonderburgh could complain of ; there was, 
consequently, no occasion for protesting against them. 
Nothing can, therefore, have been neglected through 
the silence of the house of Sonderburgh, independent 
of its being expressly mentioned in the treaty of Oden- 
see, of 1579, that none of the Dukes of Sleswic-Hol- 
stein shall lose their right of succession, except by 
special agreement and renunciation. 

The committee concludes its report with the remark, 
that the treaties of 1767 and 1773 have long since 
constituted part of the European law of nations. This 
is a truth wliich nobody will dispute, and which we 
are least of all inclined to contradict. But the inter- 
pretation given to these treaties ought not to be mis- 
taken for the treaties themselves. The European law 
of nations records not the imagined, but the real con- 
tents of the political treaties, which, in the present 
case, we hope we have succeeded in illustrating. We 
have not been able to arrive at any other conviction 
than that the inferences which the committee has en- 
deavoured to draw from these treaties are without any 
foundation wiiatevcr. 



96 



X. — ^Having thus far endeavoured to show th^ 
fallacy of the reasons alleged in the report of the com- 
mittee for the assertion that the duchy of Sleswic has 
been incorporated with the kingdom of Denmark, or 
at least subjected to the succession of the royal law, we 
have only to consider one other circumstance, which, 
if it were at all able to decide any question concerning 
the public law of the country, would also in the present 
instance be of no small importance. 

We are aware that an opinion is gaining ground, 
according to which the duchies of Sleswic and Hol- 
stein are said to be united with the kingdom of Den- 
mark, so as to form together with the latter " one 
political body," a united monarchy, or state, and to 
have lost thereby their separate political law, more 
especially their former law of succession, and received 
in its stead the succession of the kingdom, i. e., that of 
the Danish r^tf law. 

The committee must have perceived the consequence 
of this question, concerning which the report con- 
tains the following statement:^ It (the duchy of 
Sleswic) is not, strictly speaking, part of the king- 
dom of Denmark ; but it forms, like Holstein and 
Lasenburgh (each with its peculiar political institu- 
tions), part of the united monarchy. On the other 
hand, it has, in common with Holstein, everything 
resulting from the union which has hitherto subsisted 
between the two duchies, and been sanctioned by his 
majesty." 



* Commissionsbedenken, p. 12. 



97 



In another passage* the committee observes, with 
regard to the expression poh'tical body," occurring 
in the patent of the 9th September, 1806, that the 
different branches of the house of Oldenburgh had 
made no objection to this expression. 

Although the committee does not pronounce any 
decided opinion, yet it is evidently inclined to believe 
that a political unity of the countries governed by the 
King of Denmark has really been established, and that 
the laws of the duchies have thereby materially been 
affected. 

But the existence of such an unity is not to be 
proved without an accurate statement of the facts by 
which it was brought about ; for, surely, a condition so 
directly opposed to all we have heretofore observed on 
the political affairs of the duchies, particularly of Sles- 
wic, and on their connexion with the kingdom of 
Denmark, must have required some decisive acts to 
call it into life. Now, the committee gives us no ac- 
count of such acts, and we should, therefore, be justi- 
fied in dropping the subject altogether. We will not, 
however, omit briefly to notice what comes here under 
consideration. 

Since the middle of the 17th century, and more 
especially since the establishment of absolute govern- 
ment in Denmark, it became customary, as in the rest 
of Europe, so also in this country, to consider the dif- 
ferent dominions, governed by the same sovereign, as 
belonging together, and forming a certain, though 
very indefinite, unity. In this sense the expression 
*^ crown of Denmark" was used, and in s[)caking of 

* Commissionsbedenken, p. 19. 



98 



Denmark and its political position amongst the other 
powers of Europe, in general, the royal portion of the 
duchies was usually included. It was the king, who 
carried on war, concluded peace, and regularly involv- 
ed the duchies, as far as he governed them, in the 
affairs which principally concerned the kingdom ; 
whilst, on the other hand, he appeared with the whole 
force of his kingdom to defend the interests of the 
duchies, or of the king, as co-reigning duke, whenever 
they were at stake. The same principle was also 
adhered to in other respects, for instance, in the ad- 
ministration of the -public funds, which, though raised 
in the duchies in a different manner from that in the 
kingdom, were often expended for joint purposes. But 
all that occurred of this nature did not in the least 
affect the public law itself. Whenever it was necessary, 
legally, to distinguish between the king and the duke, 
it was certainly done. The numerous political writings 
of the end of the 17th and the beginning of the 18th 
century prove this in every page. 

If the question is put, why this union could not be 
made closer still, it has already been observed on a 
former occasion, that, independent of the great dif- 
ference of nationality and law, and independent of 
what had been legally established in the privileges of 
Christian I., it could not be done on account of Hol- 
stein belonging to the German empire and the duchies 
being governed by more than one sovereign. 

History furnishes several instances in which such 
an union of different countries, founded on the circum- 
stance of being governed by the same sovereign, has 
not been able to obtain the character of a real political 
unity, or even that of permanency, chiefly when part 



99 



of the countries belonged to the German empire, and 
continued to be guided by the public law of the latter. 
The result, however, was not alwaj^s the same, but 
differed according to the different circumstances of the 
case. The Swedish possessions in Germany had been 
surrendered to the King of Sweden as such ; yet they 
retained their former laws and institutions, and had 
only the supreme government and the law of succes- 
sion in common with Sweden. This was not the case, 
if a German prince was afterwards called to a foreign 
throne, as happened to the electors of Saxony and 
Hanover with regard to Poland and England, which 
had no legal effect whatever on the affairs of their 
German countries. But even in such cases the Ger- 
man countries but too often followed the foreign king- 
doms, chiefly in their relations to other powers. 

Of a similar, though not exactly the same, nature 
was the relation of Holstein to Denmark. The first 
sovereign of these united countries had certainly not 
been called from Holstein to the throne of Denmark ; 
on the contrary, being King of Denmark, he had, also, 
acquired the government of Sleswic and Holstein ; not, 
however, as king of Denmark, but in a manner by 
which his new right was clearly distinguished from the 
former. Several of his successors have, indeed, first 
been dukes, and afterwards become kings ; for instance, 
Frederic I. and Christian HI. The treaties of union 
have had no influence on the position of the sovereign 
in the country. 

In a very different manner was Sleswic united with 
Holstein. For it had, together with Holstein, a joint 
diet, a joint government, partly the same laws, and, 
what is the chief thing, since 1460 the dukes have 

II 2 



100 



always succeeded to the government of both countries 
at the same time, by one title and one act. In the 
sequel there were regularly two, who had only the 
government in common between them; which was suf- 
ficient reason against the establishment of any real 
political union with the kingdom, where the king 
reigned alone, and with unlimited power. 

This state of things underwent a considerable alter- 
ation when the Duke of Gottorp was deprived of his 
portion of the duchy of Sleswic and confined to Hol- 
stein ; when, moreover, the joint diets ceased, and the 
joint government lost almost all its former signification. 
But the public law itself was thereby not in the least 
affected. The unity of the countries, which had 
hitherto subsisted, remained the same, even after the 
Duke of Gottorp had been limited to the possession of 
a private portion of Holstein, and to the participation 
in the government of this duchy, and the king had 
become possessed of the whole duchy of Sleswic and 
the rest of Holstein. Nor did the events of 1713 and 
1721 alter the relation of the king to Sleswic in such 
a manner as to affect the political position of the 
country in general, for it was neither more closely 
united with Denmark, nor further separated from 
Holstein, than had hitherto been the case. 

Only the vague idea of a certain unity of the coun- 
tries, founded on the unity of the sovereign, may have 
been brought more fully into play on that occasion ; 
and, it is well known how favourable a time for the 
development of such an idea was the 1 8th century, 
when all national and political distinctions vanished 
before the idea of princely power, comprehending and 
absorbing every thing. When, at that time, all the 



101 



lesser districts of the Sonderburgh line were in the 
same manner as previously the greater part of the 
Schauenburgh possessions in Holstein, and subse- 
quently the county of Ranzau, acquired by the royal 
house ; when at last even the ducal portion of Holstein 
passed, by amicable settlement, into the hands of the 
king ; when, at the same time, the confederation of 
the German empire lost more and more of its former 
signification, and the exercise of princely power in the 
separate territories became, gradually, less constrained, 
it could easily happen that the duchies, united with 
each other, were, likewise, brought into closer con- 
nexion with tlie kingdom of Denmark, or, at least, 
considered so. No foreign power was likely to inter- 
fere as far as Slesvvic was concerned. We have seen the 
endeavours which were made in Denmark at an earlier 
period to obtain a compensation for the abolition of the 
feudal dependence of Sleswic, by establishing in other 
respects a somewhat closer connexion between this 
duchy and the kingdom. Also at this later period 
some measures of that kind were taken ; it appears to 
have sometimes been forgotten that the duchy was not 
possessed by the king as King of Denmark. It is, 
however, to be observed that nothing happened to 
loosen the connexion with Holstein ; on the contrary, 
Sleswic served as a handle to draw Holstein likewise 
into the same union. But the greatest stress is to be 
laid on the circumstance, that no decided step was 
ever taken to alter the constitution of the country as by 
law established ; to abolish, for instance, the treaties 
of union, and to introduce in their stead another 
political tie. Whatever alterations took place con- 
cerned the manner of viewing the existing state of 



102 



affairs rather than the affairs themselves. Everything 
was'left to the gradual working of time. But, although 
time be able to cover and to cast into oblivion many 
things, yet it cannot destroy rights which remain prac- 
tical in all essential respects. 

We are not aware that the idea of a real political 
unity between Denmark and the duchies has ever been 
acted upon in the last century, in arranging the affairs 
of the interior. For, although the administration of 
the finances and of some other affairs was, in the 
course of time, united, yet the difference always 
preponderated ; the supreme government remained 
separate, all ordinances were issued separately for 
the kingdom and separately for the duchies, and 
whatever was arranged in common did not /Effect the 
existing treaties of union and the political indepen- 
dence of the duchies. 

In the patent of the 9th September, 1806, which 
was intended to settle the affairs of Holstein after the 
fall of the German empire, the following passage 
occurs : that Holstein shall be united with the whole 
political body of the monarchy, subjected to our 
sceptre, so as to form, in every respect, an inseparate 
part of it." With regard to the word sceptre, we refer 
the reader to what has already been remarked on this 
figurative expression, which was used in the same sig- 
nification as " crown." In this respect the patent con- 
tains nothing new. But also the expressions " political 
body" and ''monarchy" are unobjectionable if they 
are only understood in the right sense. At all events 
the agnati, entitled to succeed in* the duchies, had no 
occasion to protest against these expressions, as they 
could, certainly, not prejudice their claims in any way. 



103 



The only word which, in the original construction of 
the patent, caused them some apprehension, viz., the 
expression that Holstein should form an '^inseparable" 
part of this political body, is known''^' to have been 
altered at the request of the Duke of Augustenburgh, 
when, instead of" inseparable" the word ''inseparate^' 
was put, which has, indeed, hardly any signification 
at all, and merely implies that the only political en- 
gagement, which Holstein has at present entered into 
is with its sovereign. 

Holstein has since joined the German Confederation 
as a sovereign' duchy, wliich all the states of the 
German Confederation are, and must be, according to 
the fundamental law of the German Confederation. 

At the same time the union with Sleswic has been 
preserved just as it was before. It may be difficult to 
find an adequate term by which to denote the exact 
relation of the two duchies to each otlier. Some early 
writers, employed by the crown, have called them a 
corpus integrate, and said that they must always remain 
together undivided. This, or any corresponding ex- 
pression which might now-a-days be chosen instead, 
would appear to us perfectly satisfactory. They are 
two countries independent of each other, and in several 
respects differing from each other in their history as 
well as their laws; but they have been closely united 
for 400 years, and their union is firmly based on a 
definitive law. 

They have been just as long with the neighbouring 
kingdom of Denmark under the same reigning house, 

* Vide Widcrlegung dcs Aufsatzcs iiidcr Bcrlingsclicn Zcitung. 
Hamburgh, ISi^T. p. 37. 



104 



and first partially, then completely, under the same 
sovereign ; which has brought them, of course, in 
various ways, into closer connexion with the kingdom, 
and caused them, more especially in the general 
affairs of Europe, to form together with Denmark the 
force of their joint sovereign. 

Having hitherto endeavoured to explain from the 
particular history of our countries, what signification 
an expression like political body" has for the terri- 
tories, belonging to the King of Denmark under 
different titles, we shall now proceed to examine the 
question, whether the transactions and treaties of the 
powers, which restored the law of nations and the 
public law of Europe after the fall of the Napoleon 
dynasty, contain anything that gave to the then esta- 
blished or acknowledged union of different dominions 
and countries under one sovereign, the character of 
permanency, or of a real political unity. For it may, 
indeed, be supposed, — and there are many who enter- 
tain such a view — that those treaties, which were in- 
tended to secure the peace of Europe, ''par le reta- 
blissement d'un juste equilibre de forces^'^ settled the 
state of possession of the European powers for ever, 
by a just distribution of power, and, in so doing, pre- 
cluded the possibility of an alteration of the territo- 
rial arrangements, thus agreed upon, as likely to 
disturb the balance of power. But such a supposition 
would disparage the sense of justice, as well as th^ 
discernment of the high authorities, who arranged 
these affairs. 

* In the treaty of Chaumont, dated the 1st March, 1814. Vide 
Martens, Recueil des principaux traites, Supplem. V. p. 6154. 



105 



We do not intend here to discuss these aherations, 
which, caused hy revolutionary movements, have been 
succeeded by some modifications of the state of affairs, 
established in the year 1815. In such cases, the five 
great powers, acting as representatives of all the 
powers of Europe, have availed tliemselves of the 
expedient of making new treaties, in order to remove 
the difficulties and inconveniences arising from the 
former condition. The separation of Belgium from 
the Netherlands, the union of which was, in 1815, 
considered of such great importance, has neither 
disturbed the peace of Europe, nor made any further 
alteration in the general state of possession necessary, 
in order to restore the balance of power. 

With regard to our question, it is of consequence 
that the transactions of 1815 contain nothing what- 
ever to prove the establishment of the principle, that 
the well-founded right of succession of certain 
princely families to certain territories, should, in 
favour of the then existing state of possession, be con- 
sidered as extinct. On the contrary, at the congress 
itself, and in all transactions concerning these affairs^ 
the principle, that any such right, unless expressly 
abolished, should remain valid in all its bearings, has 
strictly been adhered to. Tlie establishment, or one 
might say, the constitution, of the political system of 
Europe, is so far from being founded on the balance 
of power alone, that even the dominions of the great 
powers, as we are able to prove by an important exam- 
ple, are not exempt from the effects and consequences 
of the right of succession. When the different right 
of the male and female succession was to separate the 
crowns of Great Britain and Hanover, wliich, in 



106 



foreign affairs at least, had acted as one power, 
chiefly in the latter period of their union ; the ques- 
tion whether, and how, the separation might be pre- 
vented, in order to maintain the existing state of 
affairs, was not even mooted ; and the separation took 
place, though Hanover had, in 1815, been considerably 
enlarged through its very connexion with England, 
and through the influence of this kingdom, governed 
by the same sovereign, in order to indemnify the 
English government for certain sacrifices and ser- 
vices,* rendered by the same. The cabinet of Saint 
James's never thought of claiming the thus acquired 
territories for the crown of England. 

This instance clearly proves that the principles, 
according to which the political treaty of 1815 was 
concluded, cannot materially have altered the rela- 
tion of the duchies of Sleswic and Holstein to the 
kingdom of Denmark, and that, more especially, no 
right can have been conceded to the king of Den- 
mark, as such, to possess the duchies for ever. Never- 
theless, th^ expression "united monarchy," or 
" state," is often used since that time, in speaking of 
the whole of the countries under his sceptre, and we 
are therefore induced to explain in a few words the 
signification which is to be attributed to these and 
similar expressions. For an idea appears to be gain- 
ing ground, that instead of merely denoting historical 
results, they contain political principles, and involve 
not only the right, but the duty, to draw from them 

* We remind the reader of the ncgociations of England with 
Prussia in the spring of 1813 in which the cabinet of St. James's 
made it a condition of the payment of its subsidies, that Eastfries- 
land, Hildesheim, Goslar, &c. should be ceded to Hanover. 



107 



such inferences, as even the positive law must submit 
to. 

The committee, also, appears to believe that because 
the countries governed by the King of Denmark, form 
one united monarchy," any right, which might lead 
to a separation of the same, ought to be considered as 
extinct. This is the last argument that can possibly 
be opposed to the independent law of succession of 
the duchies; and any one interested in the case, 
would certainly have felt obliged to the committee, if 
it had, with clearness and precision, developed its ideas 
on this head. It has, however, preferred to touch 
upon the subject in the slightest possible manner. 

Public law has not yet positively and definitively 
fixed the signification of the above expressions, what- 
ever inducement it may have, just at present, in the 
political affairs of Europe, to settle this question. 
Some attempts have, certainly, been made, which, 
however, it would lead us too far, to submit to a more 
minute examination ; for they have only convinced us 
that it is altogether impossible to establish a satisfac- 
tory definition of a " united monarchy" or state." 
The only thing really inherent in these expressions is, 
that kind of union by which several countries belong- 
ing to the same monarchy or state, are considered as 
a whole, and, for the time being, acknowledged as 
such by the law of nations. But the forms of such 
an union may be of an infinite variety, none of which 
can claim for itself the right of being considered as 
the exclusive form of a united monarchy. If the 
state be only united^ so as to form a whole with regard 
to other states, the manner, or diLvatiorij of tliis union, 
is of no consequence. No theory can predetermine 



108 



the latter for a special case ; but as the law of nations 
acknowledges the existing union, so it is the positive 
law, and the historical events and circumstances, from 
which this union derives its particular form. 

No light is, therefore, thrown on the subject of our 
inquiry by the idea and expression of a united mo- 
narchy, or a united state ; and it speaks neither for 
nor against an independent law of succession of the 
duchy of Sleswic, that the countries governed by the 
King of Denmark are sometimes called by the above 
appellations. However, if we were overscrupulous in 
explaining these expressions, (which we do not intend 
to be,) we should arrive at a conclusion, almost 
directly opposed to the view of the committee. For 
the idea of a united monarchy implies an acknow- 
ledgment of a certain political independence of the 
different countries, thus united, and in so far differs 
from that of a state, which is uniform in all its parts. 
Such a state, as for instance France, can never be 
called a united monarchy, which expression is only 
applicable to states like Austria or Russia. In some 
of these, the same law of succession is established 
throughout ; but it cannot be said, that this must 
necessarily be the case, or in other words, that a 
united monarchy forms an indissoluble whole. 

From all this it is clear, that neither certain histori- 
cal events, nor any positive and legal stipulations, 
have established a real political unity of the countries 
governed by the King of Denmark, and that neither 
the treaty of 1815, nor the science of politics assign, to 
the expressions of " united monarchy" or " state'' any 
such signification, by which the existing law of suc- 
cession of the duchy of Sleswic could in any way be 



109 



affected. It is clear that the political system of 
Europe is by no means alone founded on the doctrine 
of the balance of power, but at the same time, and 
much more so on legitimacy ; that is to say, on the 
acknowledgment of the inviolability of those rights 
by virtue of which not only the present sovereigns 
wear their crowns, but also the future ones will do so, 
while right is right. 



APPENDIX. 



On the signification of the word " Crown,'' in the 
Seventeenth and Eighteenth Century, 

The expression, ''crown" and crown of Denmark/* 
being of peculiar importance for the political affairs 
of the duchy of Sleswic, it appears necessary to inquire 
somewhat more minutely into the meaning of this 
word in general, as well as in particular regard to the 
questions under our present consideration. 

It is evident that the word has originally a certain 
figurative signification ; the crown being an emblem 
of the right it imparts, of the realm to which it relates, 
and of the person by whom it is w^orn. At an earlier 
period the w^ords, realm and crown, were often used 
together, the former denoting the territory, the latter 
the rights, connected therewith, and founded thereon. 
One of the earliest instances which the documents of 
our country afford, is to be found in the treaty of 
union of the year 1533, '* thosprake und vormeende 
gerechticheit alze de Crone und dat ryke tho Denne- 



Ill 



mark hebben mochten edder konnden tho dem fiirs- 
teudome Sleswick'* (Privilegien, p. ]37) ; and another 
in the treaty of Odensee of the year 1579, da es des 
Eeichs und der Crohn Dennemark bessere Gelegenheit 
ware." (Hansen, Staatsbeschreibung, etc., p. 623.) 
Simihir expressions are not unfrequently to be found 
even at a later period. 

In the treaty of Odensee, and in the bill of enfeoff- 
ment of King Frederic II., the duchy of Sleswic is 
set down as a feoff of " the kingdom of Denmark 
but soon after it was usually called a feoff of the 
" crown," or of the " crown of Denmark," as it con- 
cerned the right, founded on the country, rather than 
the country itself. Thus Faher (Staatskanzlei, xi. p. 
39) records the following words of the year 1624, ''on 
account of the duchy of Sleswic being a feoff of the 
crown of Denmark;" and the bill of enfeoffment of 
King Frederic III. of the year 1649, in speaking of 
the duchy of Sleswic, says, " which is held in feoff 
from us and the crown of Denmark, as a princely 
hereditary feoff." (Hansen, p. 656.) In like manner a 
letter of King Christian V. of the 19th December, 
1676, calls the duchy of Sleswic, a feoff of our crown 
of Denmark," and the treaty of Copenhagen of the 
2nd May, 1658, mentions " all the islands and ap- 
purtenances thereunto belonging, and dependent upon 
the said crown. (Hansen, p. 663.) 

If the treaty of 1533 speaks only of the "realm" 
or " kingdom of Denmark," for whicli tlie union with 
the duchies was established, tlie treaty of 1623 regu- 
larly employs the expression " crown ;" for instance, 
'* between the Kings of the crown of Denmark and the 
Dukes of Sleswic-Holstein," etc. (Hansen, p. 645), and 

7 



112 



the crown of Denmark with the duchies of Sleswic 
and Holstein/' (Ibid. p. 650.) **That this treaty be- 
tween the duchies of Sleswic and Holstein, and the 
crown of Denmark, shall always be renewed and re- 
confirmed by our heirs and successors, at the begin- 
ning of their reign." (Ibid.) 

As in the first of the above-quoted instances, so we 
frequently find the king and the crown placed together, 
the former as the temporary representative and pro- 
tector of the realm, the latter as denoting the perpe- 
tual rights of the same. Vide the peace of Lubeck of 
the year 1629, without any derogation from his Ma- 
jesty's honour and dignity, and his crown of Den- 
mark," and '*the sovereign and feudal rights, belong- 
ing to the above-named countries." Extensio unionis 
of the year 1637, art. I., " it is our will, that the royal 
dignity, and the crown of Denmark and Norway," 
etc. Patent of sovereignty of the year 1658, " neither 
we, nor any of us and our successors in the govern- 
ment, nor this crown, shall have any pretension to, or 
claim on, the said duchy of Sleswic." (Hansen, p. 
671.) 

In the sequel the word crown generally signified 
the king himself, the dignity or the right, or, more 
properly speaking, the emblem of the dignity being 
used instead of the person. This signification is already 
apparent in the following vivid expressions: ''The 
crown of England, powerful by land and by sea.'' 
Declaration of the empire. (Faber, VIII., p. 641.) 
" The mighty crown of France, always thirsting after 
new countries and dominions.'* Statement of the Ne- 
therlands of the year 1710. (Faber XV., p. 642.) ''The 
crown of Denmark, ever pregnant with hostile designs 



113 



against the crown of Sweden."' Swedish Memoir. 
(Faber, XIX., p. 384.) The following passages can 
only be understood in the above-mentioned sense : 
''Some attempts of this kind were made on the part of 
the crown of Denmark, even during the Danish occu- 
pation of the territory of Bremen." (Faber, XIX., p. 
301.) *' The crown of Denmark did not order the 
troops to pass over from Jutland to Zealand." (Ibid, 
p., 340.) " His Imperial Majesty, the crowns of Great 
Britain and Prussia, the Elector Palatine, and the 
Elector of Brunswic assembled in council with the 
States-general at the Hague." (Ibid. p. 206.) " On 
account of being connected, through marriage, with 
the crown of Sweden." (Ibid. XXVII., p. 514.) " In 
consequence of the consanguinity, existing between 
the duke and the crown of Sweden." Peace of Stock- 
holm of the 3d June 1720. 

The word crown being thus used instead of king, 
the same expression is likewise employed when the 
king acts in any other quality but that of king. The 
sovereign is always called by the highest title belong- 
ing to him ; and in the transactions of the German em- 
pire, as well as in other German affairs, the kings of 
Prussia, Denmark, Poland, and Great Britain, are 
constantly introduced as such, though with regard to 
their German countries, they ought only to have borne 
their German title. But it being once the custom to 
use the word crown instead of king, it was also ad- 
hered to in these cases. Thus the crowns of Poland 
and Denmark are mentioned in a memorial of the 
Duke of Mecklenburgh, presented to the imperial diet 
of 1712. (Faber, XXL, p. 368.) In the year 1715, 
the King Frederic IV. concluded with the King of 

I 



114 



Great Britain a treaty, which chiefly concerned the 
cession of the districts of Bremen and Verden to the 
latter. It cannot be doubted, that the King of Great 
Britain acquired these districts, and acted only in his 
quality of Elector of Hanover. At the beginning of 
the hostilities against Sweden, he caused the following 
declaration to be made at the imperial diet : that, 
His Royal Majesty of Great Britain had, as elector 
of Brunswic and Luneburgh, no longer been able to 
forbear entering into war with his Majesty the King of 
Sweden (Faber, XXVI., p. 621 ;) and afterwards he 
expressly stated, that " he was not engaged in war 
with Sweden, on account of his kingdoms." (Ibid. 
XXIX., p. 352.) Nevertheless, he is always called, 
in the treaty, by the title of King of Great Britain, 
and in Art. the 16th he even promises to use, if re- 
quisite, all the power of the crown of Great Britain, 
to prevent," etc. In like manner, there are innumer- 
able instances, in the official as well as private wri- 
tings of that time, of the crown of Denmark, its 
measures, actions," and the like, being mentioned in 
cases in which the king acted only in his quality of 
Duke of Holstein, or of Sleswick and Holstein. So in 
the affairs relating to the bishopric of Lubec, (Faber, 
II., p. 71 ; X., p. 654, and in many other places,) and 
to the city of Hamburgh. (Ibid. XX., p. 212.) The 
emperor discriminated well in this respect, in saying, 
'* The complaints preferred against you, well-beloved 
cousin, as Duke of Holstein, in which quality they ori- 
ginated." (Faber, XXL, p. 422.) We have already 
quoted a passage, in which it is stated with the same 
clearness and precision, that in the contest with the 
house of Gottorp,the king acted in his quality of Duke 



115 



of Sleswic and Holstein ; which he, moreover, suffi- 
ciently acknowledged by entering into all the nego- 
tiations concerning this affair at the imperial diet. 
Some of the Gottorp writings, therefore, speak only of 
the Holstein Gluckstadt measures, or they use expres- 
sions like the following : " On the part of his majesty 
the king of Denmark and Norway, reigning at the 
same time as Duke of Sleswic-Holstein-Gluckstadt, in 
his portion of the said countries." (Nochmalige und 
endliche Behauptung, §4, and § 11.) But the wri- 
tings of all parties speak, even here, more frequently 
of the crown of Denmark ; for instance, as for the 
favour and kindness bestowed on the ducal house by 
the crown of Denmark, it might easily be proved, that 
on this side no means have ever been spared to oblige 
the crown of Denmark, and to secure its friendship." 
(Faber,XXIV., p. 561.) Even supposing all the im- 
putations alleged by the crown of Denmark against 
the ducal house and the prince-bishop to be true; yet 
the crown of Denmark would have no right to — " (Fa- 
ber, XXV., p. 301.) The same expression occurs, 
where matters are treated of, relating entirely and ex- 
clusively to the duchies, as for instance the taxes of 
the states, and the like. Thus the arbiter's sentence, 
pronounced on the guardianship of the administrator, 
contains the following, that his serene highness, the 
administrator, had ceded several points to the crown 
of Denmark." 

After these explanations, it will not a|)jjoar sur- 
prising, if the whole of the countries, governed by a 
king, is designated by the word ''crown," althougli 
they may not, actually, form part of tlie kingdom it- 
self. We can easily trace the application of this term 



116 



to the countries, which the king of Sweden possessed 
in Germany. They are called the German pro- 
vinces of the crown of Sweden ; (Faber, XXVI., p, 
609 ; XXXIL, p. 740 ;) and expressions like the fol- 
lowing, " the crown of Sweden on the part of its coun- 
tries situated in Germany," (Ibid. XV., p. 624,) — 
^' to expel the crown of Sweden from the German soil,'' 
(Ibid. XXVIII. , p. 484,) are of frequent occurrence. 

These countries, which remained in full possession 
of their independence and their constitution, are next 
said to be incorporated with the crown, and even with 
the kingdom of Sweden. Treaty between Sweden 
and Gottorp of the year 1661, Art. 1., ^* The crown 
of Sweden, and the provinces belonging to, and incor- 
porated with, the same." (Der verbesserte deutsche 
Fiirstenstaat. Erfurt 1677, Supplem. C.) Manifesto 
of Steenbock of the 1st IVovember 1712, " The king- 
dom of Sweden itself as well as the provinces incorpo- 
rated with it. (Faber, XX., p. 334.) Lastly, the crown 
of Sweden is said to be a member of the German em- 
pire, "When the crown of Sweden was not yet ac- 
knowledged and admitted as a member of the holy 
Roman empire," (Faber, XIX., p. 401,) and the in- 
habitants of other German countries, as those of Meck- 
len burgh, are called " neighbours of the crown of Swe- 
den." (Faber, XXL, p. 452.) 

Although the country which the king of Denmark 
possessed in Sleswic and Holstein, does not exactly 
stand in the same relation to Denmark as Bremen, and 
VeTden, and Pomerania did to Sweden, still it is by 
no means surprising, that it is, in like manner, spoken 
of as a country belonging to the crown of Denmark, 
and included in the signification of this expression. 



117 



Till the middle of the 17th century, as we have seen, 
the duchies were regularly distinguished from the 
crown of Denmark; but at the end of the 17th and 
the beginning of the 18th century, they were just as 
often comprised in this general term. As it was then 
customary to speak of the German countries, belong- 
ing to the kingdom of Denmark," (Faber, XV., p. 
628,) of Danish Holstein,'* (Faber, XV., p. 651; 
XXII., p. 329,) of *'the German provinces of Den- 
mark," (Ibid. XV., p. 652,) so it was equally the cus- 
tom, to call them countries of the Danish crown, or of 
the crown of Denmark ; for instance, " quod corona 
Danica in sua ducatuum Slesvico-ffolsaticorum parte. 
(Actor, puhl. fasc. VI., p. 26.) " The countries and 
inhabitants of the said crown of Denmark," — Patent 
of the Swedish general Gyldenstern. (Actor, puhl. 
fasc, VI., p. 26.) 

To remove all doubt concerning the manner in 
which the word crown was used in the 18th century, 
we quote the following passage from the treaty of the 
2 1st January 1713, concluded between the adminis- 
trator of the Gottorp portion, and the general Stcen- 
bock : " Wherefore the district of Segeberg and the 
county of Pinneberg were surrendered and ceded to 
them by the crown of Denmark." (Faber, XXIV., p. 
524.) 

It appears from this, that tlie expression crown 
of Denmark" was at that time not applied exclusively 
to the kingdom, but also to the countries which the 
king of Denmark governed in another quality, and 
which cither belonged to the German empire, or were 
perfectly independent. If, therefore, the king is said 
to have incorporated a certain territory with his crown, 

7 



118 



but at the same time, to have united it with one of 
the countries, situated beyond the limits of the king- 
dom, it is clear, that this cannot have been an incor- 
poration with the kingdom ; but only an union with 
the whole of the countries under his dominion. 



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